#### Jesse A. Smith Auto Company, Appellant, vs. Kaestner, imp., Respondent.

*October 5*

October *24, 1916.*

*Mechanic's lien on personalty: Priority over mortgage.*

The mechanic’s lien given by sec. 3343, Stats., for repairs upon personal property is superior to the lien of a duly filed prior mortgage upon the property.

Appeal from a judgment of the circuit court for Milwaukee county: Lawrehce W. Halsey, Circuit Judge.

*Affirmed.*

Action of replevin begun in the civil court to recover possession of an electric car. At the time the repairs in question were made plaintiff held a duly filed purchase-money mortgage on the car on which there was due the sum of $50. The defendant Kaestner, in whose possession the car was at. the time the sheriff seized it under the writ of replevin, had, at the request of the owner, Mary E. Avery, who by the terms of the mortgage was entitled to the use and possession of the car, made repairs on it of the reasonable value, with interest, of $162.10, no part of which had been paid. The civil court *206adjudged that tbe lien of *Kaestner*for repairs was superior to tbe mortgage of tbe plaintiff, and upon appeal to tbe circuit court its judgment was affirmed. Tbe plaintiff appealed.

Tbe cause was submitted for tbe appellant on tbe brief of *Raymond J. Gannon,*attorney, and *Bernard V. Brady,*of counsel, and for tbe respondent on that of *Thomas F. Hayden.*

ViNJE, J.

Is tbe mechanic’s lien given by sec. 3343, Stats. 1915, superior to tbe lien of a duly filed prior mortgage on tbe chattel repaired ? That is tbe sole question presented by tbe appeal. Sec. 3343 provides that “Every mechanic who shall make, alter or repair any article of personal property at tbe request of tbe owner or legal possessor of such property shall have a lien thereon for bis just and reasonable charges therefor, and may retain possession of such property until such charges are paid.”

In states where only the common-law artisan’s lien obtains, or where tbe statutory lien given is merely declaratory of tbe common-law lien, there is a conflict of decisions upon tbe question. Some states, at least as to a certain class of chattels, such as vehicles and machinery needing frequent repairs, bold that there is an implied consent on tbe part of tbe mortgagee, when be leaves tbe chattel in tbe possession of tbe mortgagor for use, that it shall be kept in repair and that tbe lien for such repairs shall take precedence over bis mortgage. The cases of *Hammond v. Danielson,*126 Mass. 294 (hack for hire); *Watts v. Sweeney,*127 Ind. 116, 26 N. E. 680 (railroad engine); *Drummond C. Co. v. Mills,*54 Neb. 417, 74 N. W. 966, 40 L. R. A. 761 (physician’s carriage); and *Reeves & Co. v. Russell,*28 N. Dak. 265, 148 N. W. 654 (threshing-machine engine), bold tbe artisan’s lien superior because of such implied consent. Other courts negative such implied consent and bold tbe mortgage lien superior. See *Denison v. Shuler,*47 Mich. 598, 11 N. W. 402 (engine); *Small v. Robinson,*69 Me. 425 (back used for hire); *Shaw*
      *207
      *v.*Webb, 131 Term. 173, 174 S. W. 273 (automobile); and *Baughman A. Co. v.*Emanuel, 137 Ga. 354, 73 S. E. 511, 38 L. R. A. n. s. 97 (automobile).

In view of tbe provisions of our statute we need not consider tbe question of tbe priority of tbe common-law lien over an antecedent mortgage. Sec. 3343 expressly gives tbe mecbanic a prior lien when be bas rmde tbe repairs at tbe request of tbe owner or legal possessor of tbe property, for it says tbat in sucb case be may retain possession of tbe property until bis charges are paid. In this ease tbe defendant Avery was tbe legal possessor of tbe property and tbe repairs were made at ber request. Tbe clause “and may retain possession of sucb property until sucb charges are paid” contains no exception in favor of prior lien claimants, and tbe court can make none. When the repairs are made at tbe request of tbe owner or legal possessor of tbe repaired property tbe statute insures possession thereof in tbe mechanic till bis just and reasonable charges are paid.

Tbe legislative declaration tbat under such conditions tbe artisan shall have a superior lien is founded upon justice. Tbe repairs made ordinarily enhance tbe value of tbe property to tbe extent of tbe reasonable value of tbe repairs, and prior lien claimants are therefore not adversely affected by tbe superior lien of tbe artisan, since the value of their security, subject to tbe artisan’s lien, is tbe same as it was before tbe repairs were made. Moreover, in view of tbe conditions under which artisans are called upon to make repairs, often in tbe nature of emergency work, it would be highly inequitable to charge them with constructive notice of mortgages filed perhaps long distances from where tbe repairs are made. It was, no doubt, because they have to make repairs under sucb conditions and because they materially enhance tbe value of tbe property intrusted to them tbat tbe legislature gave them a prior lien.

*By the Gourt.*— Judgment affirmed.