23 Ill. 85 | Ill. | 1859
At the time the contract set out in the record in this case was' entered into, for the erection and completion of the building on the lot therein described, Donaldson had an equitable title to the lot in virtue of his certificate of purchase from the Emporium Company, in whom the fee resided. Under the seventeenth section-of ch. 65, (Scates’ Comp. 158), he is to be considered the owner within the meaning of that chapter, to the extent of his right and interest in the premises. Donaldson held such an interest until the work was completed by the contractors for building, and did not forfeit his right until some time afterward, nor is it very clear that his right was ever forfeited, no vote of the board of directors of the company having declared a forfeiture, as the contract with the company on the purchase of the lot provides. Be this as it may, Donaldson had such an interest in the lot as will support the lien of the mechanics who erected the building and furnished the materials, and such lien binds his whole estate and interest in it, whatever it may be, in like manner as a mortgage would have done, and the creditor may cause the right of redemption, or whatever other right or estate such owner had in the land at the time of making the contract, to be sold, and the proceeds of sale applied according to the provisions of the statute.
In Stiegleman et al. v. McBride, 17 Ill. R. 301, this court say, “ Where work is done or materials furnished under the provisions of this law, they become a part of the land, and together with the ground upon which the improvement is made, form one entire thing, that is, real estate; and however many interests there may be in the land, and by whatever names they may be known, all together constitute the land. The land may be sold in this proceeding, and the money applied according to the rights of all parties in interest and before the court. The lien created by the law is not against the specific thing furnished, nor necessarily against the interest alone in the land of the party for whom they are furnished, but against the land, and should be satisfied out of the same in any manner consistent with the statute, and the principles of equity.” Again the court say, “ The person for whom the work is done or materials furnished, may have a life estate in the land, determinable at a period uncertain, as the life may be long or short; he may have a right of possession for a period certain, and the improvements and erections may be of a character entitling him to remove them, or surrender them to the owner of the fee ;” and further, “ In a proceeding against the party in possession, though he be not the owner, the land may be sold, and the purchaser will take the title as against him. As against the party for whom the work is done or materials furnished, and who is in possession, the land may be subjected to sale, and whatever interest he may have therein, be it more or less, will vest in the purchaser.” Turney v. Saunders et al., 4 Scam. 527 ; Garnet v. Stephenson et al., 3 Gilm. 261, 280.
The fact, then, that the Emporium Company hold the legal title to this lot, cannot override the lien of the mechanics. Whatever interest Donaldson had in the premises can be sold, and to this extent is the decree of the court.
There is one fact in the case that ought to have considerable weight in favor of the defendants in error, and that is, before they commenced the work, the president .of the Emporium Company drew up the contract between them and Donaldson, and never disclosed the interest of the company in the lot. This would seem to, bring the case within the principle decided in Higgins v. Maloney, 14 Ill. R. 269. In equity the company ought to be estopped to deny that Donaldson was the owner of the lot. The company, by their president, stood by and suffered the defendants to enter into the contract, without disclosing the fact that Donaldson did not own the lot, and had made no payment on it. The principles of equity ought to estop the company from setting up their title against the lien. Wendall v. Rensselaer, 1 Johns. Ch. 344; Stores v. Barker, 6 Johns. Ch. 166.
We think the decree of the Circuit Court was right, and' accordingly affirm it.
Decree affirmed.
