| N.D. | Apr 27, 1918
This is an appeal from a judgment in favor of the plaintiff confirming his claim to a mechanic’s lien and declaring it superior to the lien of purchase-money mortgages. The only question necessary to consider is in regard to the status of the liens claimed by the appealing mortgagees. The property consists of- eight lots in the city of Minot. The defendant J. Olson was the owner of the eight lots and the president of the German-American Bank. lie made a contract with Christ Rudd, deceased, to sell him the eight lots at $500 a lot, and that the German-American Bank should loan him on each lot about $1,600 to pay the purchase price of the same and to improve the lots, and that Rudd should also give to Olson a small commission mortgage. Accordingly Olson made a deed of the lots to Rudd and at the same time took mortgages in accordance with the agreement. Olson retained the deeds and the mortgages in his own possession until he delivered them for record to the register of deeds on May 25, 1914, at 2:45 p. m. The delivery and recording of the deeds and mortgages was in all respects simultaneous. And until such delivery Rudd had no title or interest in the lots. As Rudd had no title until the delivery óf the deeds and mortgages for record, it was in no wise possible for him, by any contract, to give a lien on the lots prior to the lien of the mortgages. However, in anticipation of obtaining the title to the lots, Rudd contracted with the plaintiff to do the work for which he claims a mechanic’s lien, and the plaintiff commenced the work a few hours prior to the time of filing for record the deeds ánd mortgages. The.work done prior to such filing was of little consequence, and it was not sufficient to give notice to anyone. It was done while Olson held his title and his deeds and his mortgages, and while he still had power to rescind the transaction.
The statute provides in effect that any person who performs labor or furnished material for the erection of a building upon lands under a contract with the owner of the land shall have a lien therefor upon such building and upon the land belonging to such owner on which the same is situated on compliance with the conditions of the Lien Law. Comp. Laws 1913, § 6814.
A party claiming a lien must in due time file with the clerk of the dis
Under tbe statute, mechanics’ liens are preferred t& all other liens or encumbrances filed or. docketed subsequent to tbe commencement of a building. Section 6822.
However, as in this case when a party claims that a labor lien bas priority over a recorded mortgage be must-show tbe doing of substantial work under a contract with tbe owner of tbe land. Tbe work must be of such a conspicuous character as to fairly give notice to tbe bolder of a recorded lien. In this case tbe alleged work done prior to tbe recording of the deeds and mortgages was too meager, and it was not done under a contract with tbe owner of tbe lots. Hence, tbe mechanic’s lien must be and it is adjudged to be subject and subsequent to tbe lien of tbe appellant’s mortgages.
Judgment modified accordingly.