51 P. 649 | Or. | 1900
Lead Opinion
Decided 10 January, 1898.
On Motion to Dismiss Appeal.
[51 Pac. 619.]
Opinion on the Merits
Decided 19 February, 1900.
On the Merits.
[60 Pac. 1.1
A bona fide mortgagee for value must be regarded as a bona fide purchaser within the letter and spirit of the mechanic’s lien law, and there is no question that when the sale or mortgage is prior to the commencement of any work or delivery of any materials, it will be preferred to its full extent in a contest with mechanics. When a mortgagee has placed his mortgage upon record, his rights are then protected by law. He has given such notice as the law has prescribed and is not bound either to assent to or dissent from any agreement for improvements made by the person in possession : Capital Lum. Co. v. Ryan, 34 Or. 73 (54 Pac. 1093); Brooks v. Lester, 36 Md. 95; Foushee v. Grigsby, 12 Bush (Ky.), 75; Jessup v. Stone, 13 Wis. 466; Greene v. Sprague, 120 Ill. 416; Hoover v. Wheeler, 23 Miss. 314; Kiene v. Hodge, 90 Iowa, 212 (57 N. W. 717); Robinson v. Williams, 22 N. Y. 380.
The mortgage is a first lien on the whole property and is to be first satisfied out of the proceeds of sale : Miller v. Seal, 71 Iowa, 392 (32 N. W. 391); Kiene v. Hodge, 90 Iowa, 212 (57 N. W. 717); Oppenheimer v. Walker, 3 Hun. 30.
Under a statute providing that a lien created by a mechanic’s lien shall be preferred to all other liens which may attach subsequent to the commencement of the building, as provided by Section 3671 of Hill’s Ann. Laws, a mortgage executed and recorded prior to the commencement of work on a building takes precedence of the mechanic’s lien, although the mortgage may not expressly provide for future advances, and although some of the money secured by the mortgage was not paid until after the work had begun, being used to pay for labor and materials : Martsolf v. Barnwell, 15 Kan. 461, 464; Robinson v. Consolidated Real Estate, 55 Md. 105; Bartlett v. Bilger (61 N. W. 233-235); Wisconsin Planing Mills Co. v. Chuda, 72 Wis. 277 ; Phillips, Mech. Liens (3 ed.), § 237 ; Moroney's Appeal, 24 Pa. St. 372; Bartlett v. Bilger, — Iowa, — (61 N. W. 233).
Any building or improvement erected upon land subsequent to the execution of a mortgage, becomes a part of the land and is subject to the existing incumbrances : Inverarity v. Stowell, 10 Or. 261-264; Monticello Bank v. Sweet, — Ark. — (43 S. W. 500).
For Delahunt there was a brief over the name of Gearin & Brodie, with an oral argument by Mr. Geo. A. Brodie.
delivered the opinion of the court.
This is a suit to foreclose a mechanic’s lien. On March 29, 1895, the defendants Delahunt and wife executed and delivered to the defendant the Alliance Trust Company a mortgage on lots 9 and 10, block 64, in Irvington, a suburb of Portland, to secure the payment of a loan of $3,000, and on the next day it was recorded. Some time in the following month the defendant Chandler, as contractor, commenced the erection of a dwelling house upon the mortgaged premises for the Delahunts, for which the plaintiff furnished materials, and, in default of payment, filed a lien upon the building and premises, and in due time commenced this suit to foreclose the same.
Reversed.