16 S.D. 481 | S.D. | 1903
This is an appeal by the plaintiff from a judgment based upon the findings of the court in favor of the defendant. In 1891 the firm of F. A. Fisher & Co. filed a mechanic’s lien against the Sioux Falls Stockyard Company for the sum of $91,883.37. An action was commenced to foreclose
It is contended on the part of the appellant (1) that the evidence that the taxes were not to be considered a claim against the property at the time of the making of the Torrey contract clearly preponderated in favor of the appellant, and
It will be observed that the court finds that at the time of the making of the said contract the premises described were subject to taxes amounting to about $4,700, and that, prior to the date of the said contract, machinery of the value of $20,000 had been placed in the building upon said premises by the Fred W. Wolffe Company, and attached thereto, and that there was a balance due under said Wolffe conditional sale contract of about $8,000; and from the findings the court concludes, as matter of law, that the mechanic’s lien referred to in the said contract was not a first claim upon the property, and for that reason the. said contract never became binding upon the said Torrey or the defendant herein. As before stated, these find
The next question presented for our determination is, did the taxes constitute a prior lien to the plaintiff’s mechanic’s lien? It will be noticed that the language used in the acceptance is, ‘ ‘Providing I find upon investigation * * * that your lien is a first claim upon the property against which it is filed.” It is contended on the part of the appellant ■ that it appears from the evidence that Torrey had been sent to Sioux Palls from the defendant’s home at Fitchburg, Ma'ss., for the purpose of investigating the liens upon the packing-house property, and that he had spent some days there in looking over the records, and wasfully advised as to the taxes, and that his knowledge of the existence of taxes was the knowledge of the defendant, for whom he was acting as agentandthatthereforeitcouldnothave been intended to include taxes as a claim against the property. It is true, Torrey did made certain investigations in regard to liens existing against the property, but it does not affirmitively appear that he made any examination of the records or any investigation regarding the taxes outstanding against the said property. The defendant, in his evidence, states that Mr. Torrey was asked by him to come to Sioux Falls to look up matters of record and otherwise, which he did, and that Mr. Torrey came back to Fitchburg, and gave him a detailed list, to a certain extent, of what he found. It will be observed that
The only remaining question, therefore, is, did the mechanic’s lien constitute a first claim upon the property, within the meaning of that term as used in the contract? That the taxes constituted a paramount and superior lien upon the property cannot be seriously questioned. Did such taxes constitute a first claim upon the property? The word “claim” is a very broad and comprehensive term, and may include every description of lien. Ellis v. Polhemus, 27 Cal. 355; Ellissen v. Halleck, 6 Cal. 386; Southern Pacific R. Co. v. United States (C. C.) 38 Fed. 56; Johnson v. Hollensworth, 48 Mich. 140, 11 N. W. 843. It is quite clear that the term “claim” is broad and
In the views we have taken of this case, it becomes unneccessary to consider the Wolffe claim, or whether or not it was a claim prior or superior to the mechanic’s lien, and we do not deem it necessary to consider or discuss the question argued by the respective counsel as to the admissibility of the alleged oral agreement as to the taxes being excluded from the contract.
The views expressed lead to the conclusion that the judgment of the circuit court and order denying a new trial must be affirmed.