51 Kan. 134 | Kan. | 1893
Plaintiff in error, as plaintiff below, brought this action to foreclose a mechanic’s lien on a lot and a half in the city of Newton, making A. R. Ainsworth, Emily K. Larned, W. W. Haas, and others, defendants. Ainsworth claimed to hold the legal title to the lots. Emily K. Larned and W. W. Haas both claimed liens on the property as mortgagees from Fretz, and each contested the right of plaintiff to any lien on the premises. The main question in the case is, whether the special findings of the jury show that the defendant Fretz was the owner of the lots, within the meaning of the statute, so that he might encumber them with a mechanic’s lien. The materials for which the plaintiff claimed a lien were furnished for the erection of a dwelling house and the appurtenances, under contract with Fretz. The erection of the building was commenced on April 26, 1887, and the last of the material was furnished, and the last work done, on the 10th of June, 1887. At the time the work on the building was commenced, the legal title to the lots was in Shafer & Brown, who conveyed the property to Fretz on June 2,1887. The mortgages under which defendants Larned and Haas claimed were executed by Fretz on June 1, 1887. Afterward, the legal title passed from Fretz through one Canen to the defendant Ainsworth. Special findings were made by the jury, among which are the following:
“9. What claim, right, title or ownership did A. K. Fretz have in and about lot No. 15 and the east half of lot No. 17, in block No. 4, in the city of Newton, Kas., at the time he contracted for the materials for which plaintiff claims a lien in this action? A. Claimed by undisputed possession.”
“ 12. Did Fretz have any contract, either written or verbal, with the owner of the legal title to said premises for the purchase of the same at the time he contracted for the materials for which plaintiff asks a lien, or at any time prior to the date of the deed? A. We cannot tell.”
Upon these facts, the court held that the plaintiff had no
The main difficulty in this case is that the nature of Fretz’s title is not shown. It only appears that he was in the undisputed possession of the property, and that he acquired the fee on the day after the mortgages under which the defendants Larned and Haas claim were executed. Possession, however, undisputed possession, is evidence of title. Full title itself is but the right to unlimited possession, and the fact that a person is in full possession of lands unexplained is'evidence of ownership. In Bricker v. Ledbetter, 26 Kas. 269, it was held that where it appears that a husband and wife entered into the possession of vacant land, built a house thereupon and occupied it, such possession is prima faaie evidence of title, and sufficient as against a mere trespasser and wrongdoer. So in Douglass v. Dickson, 31 Kas. 310, possession under claim and color of title is sufficient evidence of title in an action to recover damages from a mere trespasser. (See, also, Guffin v. Linney, 26 Kas. 717; Drug Co. v. Brown, 46 id. 543.) It is true that in this case it is shown that the legal title was in Shafer & Brown, and, if the controversy were between plaintiff and Shafer & Brown, it would be incumbent on the plaintiff to show what right Fretz had as against them, and the case of Huff v. Jolly, 41 Kas. 537, would be in point;
In this case, no such state of facts is shown • but it does appear that Fretz’s possession was followed by the conveyance to him, on June 2, 1887, of the full legal title. The mortgagees also claimed under Fretz, and their claims are based on mortgages executed prior to the date of the deed from Shafer & Brown to Fretz. We are unable to perceive any good reason why Fretz should be held to have a better right to encumber the lots with mortgage liens before he had a deed to the lots than with a mechanic’s lien. At the time these mortgages were executed, a dwelling house, which certainly must have been plainly visible to any person seeing the lots, was in the course of construction, and that was sufficient to put the mortgagees on inquiry as to the existence of mechanic’s liens. We see nothing inequitable in holding that those who have furnished material for the construction of the mortgaged property should be paid for it. We think, under the facts established in this case, it is fairly to be inferred that Fretz had a right to erect a dwelling house as he did, and, in the absence, of any contrary showing, that the