OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

Honorable Homer mrriron, Jr. 

Dlraotor, Dapartment of PublSo Saiety 

Auatln, Texae . 

Dear Sir: 

or other aoouor eridonoe that ruoh 

ih has bean 8atlrflsd. 

private sale in aaoordanoe with the term of the mortgage, and 

that suah Oertifloate 0r Title may not nata 

the ssoond or inferior llene',;whioh exl8tad 

against said motor vehiole p&r to the time 

of repossession and forealoeure of the prior 

li0n. 
Honorable Homer Harrison, Jr., Page 8 

WWe now ask the tollowlng question: 

*Shall the Department iesue a 

Certifioate of Title against a motor vehlole upon affidavit of repoasession and under the olroumstanoes 

outlined above, when there is ot record a first lien against tires, 

radio or other aocsssorles, without 

requiring from the applicant either 

a notation on the application of 

auoh first lien against tires, radio 

or other aooassorlss, or rvfdsnae 

that such first lien haa been ratisfied?” 

Thie Department ruled in opinion No. O-1984 as 

roilowe t 

“By way of 8ummary, it ia the opinion of 

this department that where a mortgagee repoase~sea a motor rehfalo and sells the same at 

a private sale, whloh prooedurd is in aooordanoe with the terms of the mortgage, your Dspartment Is authorized to issue a Certifloate 

of Title in the name of the purohaser at suah 

private forooloeure aale wbioh oertitioate may 

not note on the same the aeoond or inrerior 

liens which existed againat said motor vehl018 prior to the time of repossession and ioreoloeure of the prior llen.w 

In euoh opinion this Department reoognized that 

the rule of law stated therein applied only to a forsolosure of the rirst or prior lien and.the efieot of suoh 

foreolosure on a second or mubsequent lien. It 1s a rule 

or law too well settled to nead the oltation of authority 

that where a eeoond or inferior lien is roreoloasd, euoh 

foreclosure does not prejudice the right or extinguish 

the lien of the first or prior nortga$e holder. Your 

question therefore resolves itself down to thls: Ii the 

lien whloh the vendor of the tires, radio and other aooeseories takes against euoh artioles is a first lien 

against euoh artioles even though they are put on to a motor vehlole which bears a prior and first lien against 
Honorable Homer Oarrison, Jr., Page $ 

such motor vehicle, then the foreolosure of such lien 

on the motor rehiale by the mortgage holder on the came 

would not extinguish the first lien whioh the vendor of 

the tires, radio or other aooessorles had against suoh 

aoaesaorlee. However, on the other hand, if when suoh 

tire, radio or other aooessory is attaohed to the motor vehiole, the party holdtng a first and prior lien 

against such motor vehicle gets a first lien against auoh 

tire, radio or other aocessory whioh Is superior to the 

lien held by the vendor of suoh aoaessory; then in such 

0886, the rorsolosure of the lien on the entire motor vehicle would be a foreclosure of the tire, radio or aooessery also, and the rule of law announced in our opinion 

No.O-1984 would apply SO that pour Department could not 

note on the Certliioate of Title of the new applicant who 

purchased the motor vehicle at the foreolorure sale, the 

lien which the vendor of the tire, radio or other aoosssorg held against suoh artiale. ~180 if the lien of the 

vendor of suoh tire, radio or other aooessory is a superior 

lien against suoh article over the holder of the original 

first mortgage on the motor vehiale, then your question 

would have to be answered in the affirmative and the applioatfon of the party who purohased the niotor vehicle at 

the foreclosure sale with suoh tire, radio or other aooessory lnoluded thereon would have to note suoh lien of the 

vendor of euah aocessory on suoh applioatlon or show other 

etvidonos that suoh first lien against suoh aooessory has 

been satisfied or extinguished. 

We are able to find but one ease on this point 

in Texas. That Is the oasb of Firestone Service Stores, 

Ino., vs. Darden, 98 S. W. (a) 916, San Antonio Court 0r 

Civil Appeale, deolded May 0, l.938. The iaots in that oass 

were stated by the Court as followsr 

'1116. w. Wrden, or Bexar Oounty, Texas, 

on the 7th day or July, 1934 purohasec rr00 

the Motor Sales Coapny, a partnership oomposed or Lester 0. Fox and Milton welnrield, 

one 19Bd Paokard Sedan, 1934, License No. 

93,307, 00t0r NO. 67300-A for the sum or 

(b.lOS.00, paying therefor b3S.00 in oash and 

leaving a balanoe of #lO.OO for whloh the 

said Darden exeouted to the Motor Sales Oompany a ohattel mortgage on the automobile, 

complete with standard attaobmenta, aooessories and equipment, The chattel mortgage was 
Honorable Homer Garrison, Jr., page 4 

duly filed of reoord with the County Clerk 

of Bexar County, Texafl, on the 0th day of 

July, 1934, a oopy of whioh mortgage ia hereto attached and marked Exhibit *A”. 

ml Thereafter, on or about the 15th of AUgust, 1934, K. 91. Darden drove to the Flrestone Service Storee, Inc., In San Antonio, 

Bexar County, Texas, and purohased three automobile tlree and tubes, size 600x23, being 

Firestone Heavy Duty Tires and tubes, bearing 

serial No. L-9630054U, L-964526U, and L97004itJ. That at the time of the purohase of 

the tires and tubes and prior to the delivery 

or the aame to M. w. Darden, a ohattel mortgage lien was execut6d from k. W. Darden to 

the Blrestone Servloe Stores, Ino., to seoure 

a balance of $66.00 of the purohase prloe of 

said tires and tubes, a copy of said mortgage 

1s hereto attached, marked Exhibit eB*. That 

the ohattel mortgage was flied of reoord with 

the Oounty clerk of Dexar County, Texas, on 

the 27th day of August, 1934; that the tires 

and tubes when purchased by E. K. Dardan wers 

placed on the Packard Sedan above desorlbed 

by the employees of the Firestone Servloe 

Stores Inc., at the lnstanos and under the 

dlreotion of 1yi. w. Darden while the said Paokard Sedan was stl3.1 on the premlsea of and at 

the plaoe ot buslnese of the Firestone Servlos 

Stores, Inc. ; that the old tire8 and tubes were 

taken off said Packard Sedan Automobile by 

Firestone Servloe Stores, Ino.*a employees and 

were delivered by them to X. W. Darden. . . ln 

In deoidlng the issue as to who had the superior 

lien to those tlrea and tubes in question, the Court held 

as r0n0w8: 

“It will be noted that appelleeta chattel 

mortgage only oovered the automobile and the 

standard attaahments, aooessorles, and equlpment dellvered to M. a. Darden, and does not 

have any provision that such ohattel mortgage 

shall include other accessories and equipment 

thereafter placed upon this automobile. Therefore the only theory on which appeliees 0Oui.d 
Honorable Homer Garrison, Jr., Page % 

oontend that their mortgage extended to anfinoluded the tires purchased rrom appellant by 

Darden would be that the tires when plaaed upon the autokobile became a part thereof as an 

aoaration or aconssion thereto. These tIrea 

being easily Identif'ied by serial numF.ers, and 

being so attaohed that they are easily removed, 

without Injury to the automobile, do not beoome a part of the automobile by the rule or 

accretion or aocession . . .* 

The rule of law announoed by the San Antonio 

Court of Civil Appeals In the Firestone oase that tires, 

tubes, eto., do not become part of the motor vehiole by 

aooeesion, is a rule of law recognized throughout the 

United States. See also the oasesof Rotor Credit Company 

VS. Smith, 24 S.W. (Sd) 974, (Sup. Ct. Ark.); Rosquet vs. 

kiaok Motor Truok Company, 168 N.E. 800, (sup. Jud. Ct. 

Ease.); Clarke v. Johnson, 187 P. 510, (Sup, Ct. Rev.)~ 

Meisel Tire f@ipang v. Edwards Finance Corp., 14 EJ.E.(IZ) 

870; Franklin Service Station, Inc., vs. Sterling Motor 

Truok Company of W.E., 147 Atl. 754, (Sup. Ct. R.I.). 

You are therefore advised that in a aase where 

a motor vehicle I.s sold Andy a chattel mortgage taken on 

tha same whioh does not aontaln any provision that tha 

ohattel mortgage shall include other acoessorles and 

aquipment thereafter plaoed upon the automobile, and where 

later a tire, tube, radio, or other aoaessory is sold and 

the vendor of suoh article retains a lien upon the sama, 

that under the authority of the Firestone Servioa Stores 

oasa, supra, the lien of the vendor of the aaoessory is 

superior against suoh article to the 1%~ placed on the 

motor vehiole upon its original sale. 

we oall to your attention, however, the faot that 

the San Antonio Court of Civil Appeals did not pass on this 

question if the original mortga:<e had contained a so-called 

waiter-aoquired property" olauee. As no suoh ofauee appeared In the original chattel mortgage taken against tha 

motor vehicle, It was unneaessary for the oourt to pass on 

this question. However, this queetlsn has been passed on 

by numerous oourts of the United States, and the rula of 

law throughout the United States has been settled and will 

undoubtedly be followed by the Texas aourts when the oeoaaion arises. 
Honorable Homer Garrison, Jr., Page 6 

There are numerous oases holding that where-the 

original ohattel mortgage against the motor vahiole oontained an after-aoquired property clause and later tires, 

or other accessories were Installed upon said motor vehicle by a oonditional eeller who retained title to said 

aoosesoriee that In such case, despite such after-aoquired 

property olause, the right of the oonditlonal seller was 

superior to that of the original mortgagee. The court or 

Appeals of Qeorgia, in the oase of PaesIen vs. B. F. Goodrioh Company, 199 S.E. 775, November 10, 1938, stated aa 

rollowe In this oonnsotionr 

“The oontraot which retained tho title 

to the truok upon which the tires sued for 

were subsequently placed, provided that additions to the truok ehould become a part or 

the truok and be oovered by the oontraot. . . 

*Every one who buys a truok knows that 

the replaoement of tires and tubes 1s~ Inevitable rrom a standpoInt of keeping the vehicle in service and from a standpoint of proteotion of life and tha property itself. 

Eenoe the ease with whmiah they are removable. 

. . . 

*The title to the tiree never did pass to 

the owner of the truok, and we can think of 

no reason why the seller or the tires and 

tubes would be estopped to alaim title to 

them unless there was rraud praatioed ,In the 

replacement. Surely the eellsr would not be 

estopped because he mada traveling sarer for 

the truok and Its drivers and mada IWO of the 

truok sure and aontinuoue at least for a time. 

The seller’s aotion oan not reasonably be aaid 

to have oaused the party holding the oontraot 

on the truok to have acted to his Injury. So, 

W@ conclude that the seller of the tires and 

tubes has the superior title and that the judgment of the court below was oorrect. Goodrioh 

Silvertown Stores v. Caesar, 214 N.C. 85, 197 

5.2. 698; 2 Berry on Automobiles, 6th Ed. SlSO6; 

Linooln Road Equipment Co. v. Bolton, 127 Neb. 

224, 864 N.W. 884; Goodrich SilVertovPn StOrQn 

V. A. h A. credit 8ystem, Ino., 200 Idinn. 866, 
Honorable Homer Garrison, Jr., page V 

874 N.W. 178r Firestone Servioa Stores, Ino., 

v. Darden, Tax. cit. App., 90 S.W. 86 313; 

Goodrioh Silvertown Storea v. Pratt Motor CO., 

198 Minn. 8bO, 869 N.W. 464; Ksirsl Tire (lo. 

v. Ear-Be1 Trading co., 155 Miso. 664, 2SO x?. 

Y.S. 335, and cit.; 98 A.L.R. 427, and cit.’ 

The 8ame faot aituatloa oonfrontsd the Supreme 

Court of Rhode Island in the ease or Franklin Servloa 

Station, Inc., va. Sterling Motor Truak clompany of N.X. 

147 Atl. 764, deoided November IS, 1929. The original 

chattel mortgage in that oese oontalnad an after-aoqulred 

property olaure. The vendor of the tires sold the same 

under a oonditlonal sale oontraot, In which ease title 

reaained in the vendor. The 00urt held the righta of 

the oonditlonal vendor ot the tires superior to that of 

the original ohattsl mortgagee and stated as follower 

WTha automobile to-day is orten assembled with parts bought iron dirreront dealera, 

which are separable and replaceable. Thlr 

praotloe and oourae or the business met be 

considered on the questfon at aooession us applied ta automobllsr . 

*we are or the op%nion, as,alrsady espressed, that the mortgage@ did not have title 

to the tires in que~tlon.* 

The same rule or law was announoed by the supreme 

court 0r calirornia in the ease or D. Q. ssnios tMrporation vs. Seourities Loan and Dlsoount Ooapany, 292 P. 497. 

Tha rule or law announoed above in a ease where 

the original ohattel mortgage contained an a?ter-aoqulred 

property olauae and the vendor of the tire or other aoo8seory retained title to suoh aoorasory under a aonditional 

sales oontraot has also been extended to oases where the 

vendor 0r the tire or aocessory retained only a lion against 

suoh aooessory, The rule has been established that the 

original mortgagee Mdar the after-a@gUimd pTOp@Sty tthUSe 

has his mortgage attached against suoh after-adquired tir6 

or other aocessory only to the extent of the title of the 

purohaser in said artiole. The Supreme court 0r Errors or 
315 

Honorable Homer Garrison, Jr., page S 

CoMaatiaut aMoUW3ed this rule or law In the aaLse of 

Tire Shop Y. Peat, 161 Atl. 96, June 21, 1932. The Court 

stated as r0li0w88 

*While the authorltiee are not in harmony, 

we regard the weight of reason to be with those 

who hold, at least in the abeenae of express 

provision oonoernlng after-aoquired equipment, 

that the conditional vendor of a car, on repossessing it, takes only suah title as the purchaser had in parts or equipment sold to him 

under a oonditlonal bill of sale, which are as 

easily and readily detaoheble as tires and tubes 

. . . 

nThe defendant makea a broader claim, that, 

by the terms 0r the sale 0r the automobile to 

Carney, the tirea and tubas baoeuna subjeot to 

the provfelon that ad&~& or eubatituted parts 

or aqulpaent plaood upon 6he ear are to beoome 

a oomponent part of it and are lnoludad in the 

term *oar* as used fn the bill of sale, and that 

therefore the pleintiff, when the tires and 

tubes were attaohed to the oar, lost all right 

or intareat in them. But while the dsiandant 

and Carney were tree to make thie agreement between themselves, they oould not by its terms 

bind third persons not parties to it. Davis Y. 

Blies , supra. Title to the tires and tuber oould 

pass to the derendant only through carney, and 

he oould pass only ruoh title as he aoqulred in 

them by their purohaae. Wood Y, Holly Mfg. Co., 

suprat United State8 y. New CMeans k 0. R. Do., 

suprat Ho&es y. Mooney, supra. But Carney never 

did aopuire any property in them which waa not 

subordinate to the piaintiwa rights. It neaessarily rollows that the derendant oould only aoquire a property in them subjaot to those rights. 

The doatrine of title by aaoeasion doee not apply to the -equipment oi a oar whioh the buyer 

and seller do not intend to be merged into its 

struature and whioh is olaarly df8tlnguishable, 

and as readily detaohable from lt as are tires 

and tubes. Franklin SerYiOe StattOM, InO., Y. 

Sterling Motor Truok Co., SO R.S. 336, 147 A. 

734; BouSquet Y, Maok k?otor Truak Co., 869 Mass. 

800, 160 N.E. 000, . .* 
Honorable Homer Oarrison, Jr., ~6s g 

An exaruple of a aasa where the vendor of the 

tires took only a chattel mortgage on #al& tires and was 

held to hare a prior lien over and agalnst the original 

ohsttel mortgagee of the motor vahiola whloh ahattel 

mortgage oontained an after-aoquired property olause wue 

the Ooodrioh Silvertown Stores Y. Caesar, 197 S.E. $98, 

;&he Supreme Court of Worth Carolina, deaided JUIO 82, 

low& 

The question before the court was atated as fol- 

"The question presanted for deoialon is: 

Where the seller of automobile tires in6 tubas, 

at the tIma of the sale, takes a ohattal mortgage on the tires and tubas, and also on a truok, 

to seaure the balanoa of the purohaeo price of 

the tires and tubes, and tharaafter the tire8 

and tubes are placed on the truck, is the seller 

of the tires and tubas, upon derault in tha payma&s, entitled to recover them, or their value, 

from the seller or tha truok who has repossessed 

It, with the tires and tubas on It, undsr a prior 

aonditional sales oontraot on the truck whloh 

oontains an after-acquired property olause? 

In answer to the question, the court etatad an 

r0u0ws : 

“The dootrine of aoaarsion is inapplloable in oases where personal property Is plaoed 

upon other personal property ii the property 

so plaoed had not become an Integral .part Or 

the property to which it was attaahed and oould 

be oonvenlently detaahed. . . 

“The oonditional sales agreement was between the defendant Paul BeMutt Motor (fompny, 

as seller, and (juittle C. Caesar, aa buyer, and 

the agreement by the buyer *that any equipment, 

repairs, replacements or accessories plaaed upon said oar shall be at the buyer’s expense and 

shall become a component part thereof and inoludad In the terma of this agreement’ inured 

to the benerlt of the xotor Company only to the 

extent of’ whatever property Caesar may have had 

in any aoaessories, lnaluding tires and tubas, 

plaoad upon the truak, and Caesar never had any 

property In the tires and tubes not subjeot to 

the purchase priae ohattel mortgage exeauted by 
Honorable Homer Oarriaon, Jr., age 10 

him to the plaintiff. Therefore, the plaintirf, 

as holder of a past due ohattel mortgage thereon, 

had a right to the posseesion of the tires and 

tubes, unless they had become so attaohed to the 

automobile so as to become suoh an integral part 

thereof' aa not to be removable without detriment 

to the automobile. . .* 

The aame rule of law was aMounaed by the Suprw 

Court of Yinneaota, in the case of Goodrich Silvertom 

Stores of B. 8. Ooodrioh Co. V, A. & A. Credit System, 

IRO., 274 N.W. 172, decided June 11, 1937. The oourt 8tated 

the rule as hollows: 

"It is the rule in this state that, oomplianoe with registry lawe aside, artlolee attaohed to an automobile or other prinoipal 

artiole oi personal property, when easily detaohable without injury to either, do not parr 

by aoosrrrion to the one having a prior mortgage 

or lien on the prinoipal artiole, ae against 

the conditional vendor of the aoceasoriea, even 

if the lien inetrument on the principal article 

has an after-aoquired property olause. 000&- 

rioh Bilvertown Btorea v. Pratt Motor Co., 198 

Minn. 269, 269 N.W. 464. Thfs la on the theory 

that a mortgage or other lien reaohing aiteraoquired property can only attaah to euah property in the oondition as to title in which it 

comes into the hands of the mortgagor. St. Paul 

Xleo. Co. v. Baldwin Engineering Co.,~l29 Nina. 

221, 199 N.W. 9; Sohnirring v. Stubbe, lT7 Minn. 

441, 225 N.W. 989. Since Vader got only a qualitied title, whioh oould not beoome more without 

payment of the full purohaee prioe, defendant 

could take no greater right than Vader." 

This rule of law applicable in a oase where the 

vendor of a tire or acoeaeory passea title to the purohaeer 

and retains only a lien was perhaps best stated by the Supreme Court of South Carolina in the case of Qooarioh Silvertown, Ino., vs. Rogers, et al, 200 S.W. 91, Deoeaber 9, 

19328. The oourt stated as f'ollowst 

*The rf20t that the mortgage or the defendant Rotor Company contained a olause oovering after aoquired property is not oontrolling. Before the sale of the tirea to Rogera, 
Honorable Homer Garrison, Jr., Page 11 

title thereto was in the plaintltf, It passed 

to Rogers simultaneously with the taking effect of the mortgage to the plaintiff, it being in eff'eat a single transaction and Rogera 

only aoquired title subject to the title retention contract, this being the true intention of ths parties. He was never, therefore, 

able at any time, either prior or subsequent 

to the purchase, to pass any grehter rights 

than he had . . . 

Yonder the rule in the Cash X;ills Case, a 

mortgage intended to cover after aoquired property can only attach itaelr to euoh property 

in the oondition in which it oomes into the 

mortgagor's hands. In the oase at bar, the 

tires were subleot to the interest of the seller. 

who by virtue & its sales oontraot retained a ' 

epeozfio lien thereon. . ." (Underscoring ours) 

Our Oonol~sion based on the above disoussed oases 

is as r0il0ws: 

The lien of the vendor of the tire, tube, or other 

aoceesory is a first lien against suoh artiole and is euperior to the lien of original vendor of the motor vehiole 

YO which eaid accessory is attached. This is true even 

though the original mortgage on the motor vehiole oontalns 

an wafter-aaquired property" clause. 

It la the opinion:of this Department, therefore; 

that the Department of F%blio Safety may not issue a oertirioate of title on a motor vehicle upon aff+idavlt of 

repossession without noting on said Certificate of Title 

the rirst lien or the vendor of the tire, radio, or other 

accessory whioh la attached to the motor vahiale unle8s the 

applloant ror the new certifioate of title who is the purabaser at the foreolosure sale produces evidence betore 

your department that auoh rlrst lien against suoh sutomobile aooessory has been satisfied. 

AFFF.C)VEGJUL 2, 1940 

Yo,urs very truly 

ATMRNBY GEMShAL OF TPrXAS 

BY