43 Neb. 890 | Neb. | 1895
This action was instituted in the district court of Cedar county by the plaintiff H. T. Chapman to foreclose a real estate mortgage, executed and delivered to him by Isaac and Lucinda Brewer, upon property described in the petition, situated in Cedar county. The other parties made defendants to the action, in addition to the Brewers, were the Cedar County Bank and the Des Moines Manufacturing & Supply Company. The defendant company answered and filed a cross-bill, in which it claimed a mechanic’s lien prior in point of time to either of the mortgages. The Cedar County Bank filed an answer or cross-petition setting up a lien by mortgage executed and delivered to it by the Brewers, claiming it to be second and subsequent only to plaintiff’s mortgage. Plaintiff filed a reply to the answer and cross-petition of the company, by which was raised the question of the priority of the mechanic’s lien of the company. Upon trial the court determined and adjudged that the liens 'of the plaintiff and Cedar County Bank were prior and superior to that of the company, and from this decree the company has appealed to this court.
In the original claim of lien filed which was introduced in evidence, there appears the following statement: “That pn and between the 30th day of December, 1889, and the 25th day of January, 1890, they furnished lumber and materials and machinery supplies and labor for said building,” etc. The mortgage to Chapman was dated November 15, 1889, and recorded November 21, 1889, and the mortgage of the Cedar County Bank was dated November
It is argued that it appears upon the face of the original claim of lien, filed by appellant, which was introduced in evidence, that the claim was verified' before Gardner Y. Wright, a notary public, and who was secretary of the appellant company, and also shown by the articles of incorporation to be a stockholder therein and thus directly interested, and that being so interested he was incompetent to administer the oath to the party verifying the lien. However this may be, it was not, we think, sufficiently raised by the pleadings and was, evidently, not an issue in the trial court and cannot be considered in this court. It is further urged that the verification of the claim of lien was upon information and belief, and that it should have been sworn to positively to fulfill the requirements of our statutory provisions in regard to the verification of a claim for a mechanic’s lien. Such has been stated to be the rule in Kansas, under a statute very similar in its exactions in this respect to our own. (Dorman v. Crozier, 14 Kan., 224. See, also, Globe Iron Roofing & Corrugating Co. v. Thatcher, 6 So. Rep. [Ala.], 366). But this court in construing the provisions of the mechanic’s lien law has invariably announced and adhered to the doctrine that they must be given a liberal construction, agreeably to which it
Another contention is that our statute provides for a lien in favor of “ any person ” and not in favor of a corporation, and that a corporation cannot acquire a lien under our statutes. “ Persons also are divided by the law into-either natural persons or artificial. Natural persons are-such as the God of Nature formed us. Artificial are such as are created and devised by human laws, for the purposes of society and government, which are called corporations,, or bodies politic.” (1 Blackstone Commentaries, 123.) “ Enactments which related to persons would be variously understood, according to the circumstances under which they were used, as including or not including corporations. In its legal significance it is said the word * person ’ is a generic term and as such, prima facie, includes artificial as
It is further insisted, and very strenuously, and we will discuss it here, for it is directly connected with and is a branch of the subject last considered, i. e., the right of a corporation to file and hold a lien, that the appellant company was a foreign corporation, and if it should be decided that a home or domestic corporation could acquire or possess a mechanic’s lien it would not extend to and include a foreign corporation as competent to do so. There are authorities to the effect that wherever corporations are-embodied under the term “ persons ” it will be construed to embody only such 'as are formed under the laws of the-state enacting the statute so construed; but we do not believe it was the intention of our legislature in the use of the words “any person” to restrict their meaning, but they were used in their largest and most extended sense- and meaning, and to include both foreign and home corporations as well as natural persons. There was a denial of the corporate existence of appellant company, and it is contended that there was no sufficient proof of the corporation. The articles of incorporation, signed by the incorporators and acknowledged before a notary public, and showing, by indorsement thereon, to have been filed and
The objection was made that the party making 'oath to the lien was not a competent party to do so. D. H. Buxton, who verified the claim, states in' his oath that he is the book-keeper and treasurer, a member of the firm of Des Moines Manufacturing & Supply Company. Of the articles of incorporation of appellant company the tenth states that “ no person shall be elected director or officer of this corporation who it not a stockholder.” From all the foregoing it appears that the person who made the oath to the claim of lien was an officer of the company, and, presumably, in accordance with the requirements of article 10 above quoted, a stockholder, and, moreover, the book-keeper of the company whose claim of lien he verified. We think
It appears that the appellant company received notes for the balance due it under its contract for furnishing the material and performing the labor upon the mill, and that these notes were secured by a mortgage upon the mill property, and the mortgage also .covered other property. By so doing, it is claimed, it waived its right and lien under the lien law. The notes and mortgage were taken as security and were not, so far as the record disclosed, delivered as payment of the claim or account, or accepted as such or as in lieu of the lien, or looked upon or treated as a waiver of the lien or right to file the same.
In the case of the Great Western Mfg. Co. v. Hunter, 15 Neb., 32, it was held: “The contract for furnishing certain machinery for a grain elevator contained a clause as follows, in substance: ‘ Should shipment be made before payment in full the title, right of possession, and ownership of the aforesaid machinery shall remain in the above first party until the note is paid/ etc. Held not a waiver of a right to a mechanic’s lien,” and in the case of Hoagland v. Lusk, 33 Neb., 376, the rule was stated to be: “The acceptance by a material-man of a note and chattel mortgage as collateral security for materials previously furnished for the erection of a building under a contract with the owner is not a waiver of the lien of the material-man, unless such, was the intention of the parties.” In the text of the opinion is the following statement: “In January the firm of Lusk Bros. & Co. failed. At that time the plaintiff took a note executed by William S. Lusk, secured by chattel mortgage on some potatoes, as collateral security of the plaintiff’s claim. The potatoes were subsequently sold under the mortgage and the proceeds applied towards the payment of the plaintiff’s
We gather from the opinions of this court in which the subject of the lienor accepting other security than the lien allowed by statute has been discussed, that this court is committed to the doctrine that it is not a waiver of the statutory lien unless it appears that such was the intention, or, from the facts of the case, that it would be inequitable as between the parties to permit the holding of the further security and also the existence of the lien. We are aware that it has been held that if the party take a mortgage upon the same property upon which the statutory lien is claimed it is a waiver of the lien, or if it has been perfected by filing, etc., will displace it. In the decisions which we have examined in which the rule is so announced, the reason given or shown by the facts of the case for the doctrine was •that other lien-holders had become such by relying upon the record as showing the relations of the other parties, and to permit the mechanic or material-man who had taken the mortgage to assert the right to the statutory lien would prejudice the rights so acquired. In the case at bar this can have no application or relevancy. It will be remembered that the appellees (mortgagees) received their mortgages after the company’s rights to a lien had attached and
It was stated in a written contract between the company and Isaac Brewer, pursuant to the terms of which the material, etc., was furnished for which the company claimed! its lien, that “-agrees that said Des Moines Manufacturing & Supply Company shall have a lien upon all the machinery, fixtures, etc., herein mentioned, and upon the building and real estate where said machinery is placed, to secure all claims of said company,” and it is urged that by accepting or becoming a party to the contract with the above clause in it the company waived its fight to a lien under the mechanic’s lien law. The above agreement for a lien, if such it may be cálled, is a triumph of indefiniteness. It mentions
Decree accordingly.