Miller v. Brunswick ( 1873 )

Opinion by

Judge Hardin :

Whatever might have been the relative rights as to priority of the appellant, as landlord, and the appellees as- mortgagors of Settle and Allensworth, if the billiard tables had been voluntarily delivered to the latter by the appellees or their agents, and placed upon the leased premises before the execution of the mortgage, yet as the evidence satisfied us that by the terms of purchase the ownership of the property was not to vest in Settle & Allensworth till they paid part of the price and mortgaged the tables for the residue, and that the appellees’ rights under this contract were not waived by themselves or their agents, although it seems the tables were by some means removed from the wharf boat before the lease commenced. We must consider such possession as Settle & Allensworth may have had of the tables, before the mortgage was made, as that of mere bailees or custodians, which might have been divested and the tables reclaimed by the appellees if the purchasers had not complied with their agreement by. making the payment and the execution of the mortgage.

Bidwell, for appellant. Nigger &Mop, for appellee.

This being so, no landlord’s lien could have attached unless at the very instant the legal title became vested in Settle & Allensworth for the purpose of being at once returned to the appellees, bv means of the mortgage as security for their debt; and the delivery and execution of the mortgage and notes being simultaneous and materially dependent parts of one and the same transaction, there is obviously no' reasonable ground for the position assumed in the argument for the appellant that a lien in his favor could have-attached between the vesting of the title in Settle & Allensworth and the completion of the transaction by the execution of the mortgage.

The judgment is affirmed.