Culp v. McMehan

Fullerton, J.

Appellants, as assignees of Charles J. E. Blanc and wife, brought this action to foreclose a landlord’s lien on certain personal property formerly a part of the assets of the Chamber of Hygienics, tenants of the Blancs. The property was bought in by respondents upon a foreclosure of a chattel mortgage after the Chamber of Hygienics had gone into the hands of a receiver. Prom a judgment of dismissal upon the sustaining of a demurrer to the complaint, this appeal is taken.

The first question to be considered involves the meaning of § 1203-1 of Rem. Comp. Stat., which, in so far as it is material to the question involved, provides:

“Any person to whom rent may be due, . . . shall have a lien for such rent which is paramount to, and has preference over, all other liens. . . . Such liens shall not be for more than two months ’ rent due or to become due, nor for any rent or any installment thereof which has been due for more than two months.”

The action was brought on December 14, 1921, to foreclose the lien for rent due for the prior months of August and September, which rent, under the terms of the lease, was payable in advance, thus becoming due on the first day of each such month.

The appellants argue that the provisions of the statute quoted should not be construed as limiting the time within which an action to enforce a landlord’s lien must be brought, but should be construed as restricting the right of lien to cover a two months’ period. "We cannot accept this view. The statute could possibly be held to bear that meaning were it not for its last provision, namely: the provision reading “nor for any rent or any installment thereof which has been due for more than two months.” This provision is clear and explicit and, in our opinion, leaves no room for doubt as to the meaning of the statute; it means that the lien is not enforceable unless the action therefor is brought within two months of the time the rent which it is sought to recover becomes due.

It is next contended by tbe appellants that tbe running of tbis limitation is tolled by tbe appointment of a receiver for tbe tenant, tbe receiver in tbis case having been áppointed on September 30,1921. In support of tbis contention we are cited 25 Cyc. 1281, wherein it is said:

“After tbe property of an insolvent debtor has been assigned under tbe insolvent laws, and thus sequestered and placed in tbe custody of tbe law in trust for bis creditors, tbe statute of limitations does not run against their claims upon bis estate in tbe bands of bis assignee.”

Tbis statement of law and tbe cases cited relate to proceedings similar to our statutory assignment for tbe benefit of creditors and are not applicable here.

At 25 Cyc. 1282, we find tbe rule laid down:

“As a general rule tbe mere appointment of a receiver does not in any way affect the running of tbe statute of limitations. ’ ’

However, it is not necessary for a solution of tbis question to go outside of our own decisions. We have held that such a limitation in a lien statute was not a statute of limitation, but a limitation upon the life or duration of the lien. City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 Pac. 854, Ann. Cas. 1918B 31; Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397. In the latter case it is said:

“When tbe limit fixed by tbe statute for tbe duration of the lien is passed, no lien exists, any more than if it bad never been created. ”

In McDermott v. Tolt Land Co., 101 Wash. 114, 172 Pac. 207, the contention was made that tbe commencement of bankruptcy proceedings tolled tbe running of the time within which an action to foreclose a logger’s lien must be commenced. Attention of the court was called to § 172, Bern. Comp. Stat., which reads:

“When the commencement of an action is stayed by injunction or a statutory prohibition, the time of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action.”

Discussing this point, the court said:

“In the case of City Sash & Door Co. v. Bunn, supra, we held that § 1138, requiring an action to foreclose a lien to be commenced within eight months, was not a statute of limitations. We there said: ‘It “limits the duration of the lien. ’ ’ ’ But if we were to concede that it is a statute of limitations, it is apparent that Bern. Code, § 172, above quoted, is not applicable to this case, because no injunction was issued, and there is no statutory prohibition against the maintenance of a foreclosure action after the bankruptcy proceedings have been instituted.”

The situation is the same here, hence the attempt to foreclose the statutory lien must fail, as the lien had expired prior to the commencement of this action.

The third and final contention of appellants is that, under the terms of the lease itself, they were given a lien on the property of the lessee placed in the leased premises. It is undisputed that the lease was neither acknowledged nor filed as a chattel mortgage and that, under § 3780, Rem. Comp. Stat., it would be void as to all subsequent encumbrancers for value in good faith. Conceding this, appellants insist that it is incumbent upon respondents to allege and prove their good faith before the lease may be considered invalid as to them. In support of that position they cite Thomas v. GroteRankin Co., 75 Wash. 280, 134 Pac. 919. That case held such a lease as involved here constituted a valid chattel mortgage as between the parties, but it is not otherwise in point, as the question there was whether the subsequent purchaser was a purchaser for value. The correct rule is that it is incumbent upon the persons claiming under an alleged chattel mortgage to allege and prove good faith.

In Manhattan Trust Co. v. Seattle Coal & Iron Co., 16 Wash. 499, 48 Pac. 333, 737, in passing on this question, it is said:

‘ ‘ There is no evidence whatever that the petitioners had any notice of the existence of any chattel mortgage in favor of the plaintiff. Counsel for plaintiff and receiver argued that, as petitioners, as creditors, have not negatived notice or knowledge on their part, it should be inferred against them; hut this would be a novel rule and one that we have never seen applied. Such allegation and proof of notice should come from the one claiming the personal property under the alleged mortgage. ’ ’

This is followed and approved in Clark v. Kilian, 116 Wash. 532, 199 Pac. 721.

We find no error in the record, hence the judgment of the court below is affirmed.

Main, C. J., Parker, and Tolman, JJ., concur.