Case v. Miller

315 S.E.2d 737 (1984)

James CASE, d/b/a Ace Entertainment, Plaintiff, v. Gary M. MILLER, Executor of the Estate of Lacy J. Miller, Defendant, v. James HORN, d/b/a Horn's Garage and Wrecker Service, Intervenor.

No. 8321SC466.

Court of Appeals of North Carolina.

June 5, 1984.

*738 White & Crumpler by Fred G. Crumpler, Jr., G. Edgar Parker, and Randolph M. James, Winston-Salem, for defendant-appellant Miller.

Morrow & Reavis by Alvin A. Thomas, Winston-Salem, for intervenor-appellee Horn.

PHILLIPS, Judge.

Defendant's contentions, based on eleven assignments of error, are many and varied. In short, he contends that Horn's Garage and Wrecker Service had no right to intervene in the case, and has no lien on the funds held by the Sheriff, either because one was never acquired or if acquired was lost for failing to comply with the law in one respect or another. In our opinion, *739 none of defendant's contentions have merit and we affirm the judgment.

That Horn had lien rights against the fund and was entitled to intervene in the case because of them could not be clearer. G.S. 44A-2(d) gives any "person who ... tows or stores motor vehicles ... pursuant to an express or implied contract with [the] legal possessor" thereof a lien on the vehicles for the charges incurred. Since the Sheriff, with whom Horn contracted to look after the vehicles, was a legal possessor, Horn had a lien on them from the time he began towing them away from defendant's place to his. And his lien was enforceable in this action under the explicit language of Rule 24 of the North Carolina Rules of Civil Procedure and G.S. 1-440.43. Rule 24 provides: "(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene." G.S. 1-440.43 provides:

Any person other than the defendant who claims property which has been attached, or any person who has acquired a lien upon or an interest in such property, whether such lien or interest is acquired prior to or subsequent to the attachment, may .... (2) Intervene and secure possession of the property in the same manner and under the same conditions as is provided for intervention in claim and delivery proceedings.

Thus, having "acquired a lien" or "interest in such property," as Horn had certainly done by storing the cars for nearly a year, he had an unconditional right to intervene, which Rule 24 required the judge to enforce.

Defendant's contention that Horn had no lien because possession of the vehicles was surrendered and they were sold prior to intervention fails to take other applicable statutes into account. The sale of property encumbered by a statutory lien does not extinguish the lien; instead, its obligations are collectable from the proceeds of sale. G.S. 44A-5. And while it is true that possessory liens generally terminate when the lienor relinquishes possession, that only applies when possession is surrendered voluntarily. G.S. 44A-3. Here, possession of the vehicles was surrendered in obedience to a court order directing their sale; and obedience to court orders does not work a forfeiture of one's rights.

Nor is Horn's claim barred because notice of it was not filed with the defendant Executor within six months after the notice to creditors was published as G.S. 28A-19-3(a) provides. Because G.S. 28A-19-3(g) provides:

Nothing in this section affects or prevents any action or proceeding to enforce any mortgage, deed of trust, pledge, lien (including judgment lien), or other security interest upon any property of the decedent's estate, but no deficiency judgment will be allowed if the provisions of this section are not complied with.

Since Horn had a valid lien, as we have already ruled, he could proceed against the property or the proceeds of its sale up to its value without filing the usual notice of claim.

Finally, defendant's contention that if Horn has a lien, it is limited to charges incurred within 180 days of the commencement of storage is likewise mistaken. Though G.S. 44A-4(a), upon which defendant relies, does so provide, it does not stop there, its very next sentence being as follows: "Provided that when property is placed in storage pursuant to an express contract of storage, the lien shall continue and the lienor may bring an action to collect storage charges and enforce his lien at any time within 120 days following default on the obligation to pay storage charges." Because of this latter provision and the storage was under an express contract, Horn's right to collect did not end 180 days after the storage began, but 120 days after the default occurred. And since his contract with the Sheriff was not on the usual month to month or week to week basis, but *740 was subject to the control of the court, as the course of the litigation required, if default had occurred even when the action to collect by intervention was filed, the record does not show it. Thus, the intervenor was, as His Honor ruled, entitled to collect for the full period claimed.

Affirmed.

VAUGHN, C.J., and WHICHARD, J., concur.