115 P. 159 | Or. | 1911
delivered the opinion of the court.
Adams v. Russell, 85 Ill. 284, cited by counsel, is not in point. In that case King, Dayton & Adams sold a lot to one Watson, who purchased from Russell lumber, giving his note therefor, with which he built a house on the land. Subsequently he defaulted in his payments on the lot and reconveyed to his grantors; they agreeing to discharge the note. The court held that this agreement rendered the land liable on the foreclosure of a lien for the lumber, which the note was given to secure. It will be noted in the first place that, in the case above alluded to, the grantors made an absolute deed to the premises, reserving only a vendor’s lien, and that, upon the reconveyance, they expressly agreed to pay the debt which was embraced in the lien.
In Kerrick v. Ruggles, 78 Wis. 274 (47 N. W. 437), Ruggles purchased from the Neil-Pratt Lumber Company certain land, under a contract, the terms of which are not disclosed, and went into possession of the premises and built a mill thereon. Ruggles, with the knowledge and consent of the Neil-Pratt Lumber Company, • bought of Kerrick, and installed in the mill, certain heavy machinery, which was affixed to the realty. It was held that under these circumstances a subsequent cancellation of the contract of purchase did not extinguish Kerrick’s lien for the price of the machinery. The terms or circumstances under which the cancellation was made are not given, and whether there had been any previous default in payments does not appear.
In Wingert v. Stone, 142 Pa. 258, 262 (21 Atl. 812), Stone purchased a town lot and built a house thereon. He failed to pay for the materials used in the erection of the building, and thereafter refused to make further
In Boyd v. Blake, 42 Minn. 1 (43 N. W. 485), the vendor of land accepted a surrender of the contract of sale, agreeing, as a consideration for such surrender, to pay a lien claim which the vendee had incurred. The court held that this agreement subjected the surrendered land to the lien. In the case at bar there is no such agreement. The case of King v. Smith, 42 Minn. 286 (44 N. W. 65), seems to turn upon the construction of what the court calls an “awkwardly worded” statute of Minnesota, and, while there are some expressions used therein that appear to support plaintiff’s contention here, they are not convincing.
It is always in the power of one furnishing materials for the erection of a building to ascertain the interest therein of the person with whom he is contracting, and if he neglects this necessary precaution the courts ought to allow him to suffer the consequences of his negligence, rather than to saddle the loss upon innocent parties by a forced construction of the law.
The decree will be reversed, and one entered here dismissing the suit. Reversed : Decree Rendered.