| Utah | Jan 15, 1892
From the facts of this case, as found by the trial court, it appears that about 1888 defendant Brisacher was the owner of the property known as “ St. Elmo Hotel,” at Salt Lake City, and that he then leased the same to defendant Porter for the term of five years, at the monthly rent of $600, to be paid in advance; the term to commence May 1, 1888. The lessee covenanted to keep the premises in good repair, and in case of default the lessor was to have the right ef re-entry. Porter entered into possession, and about May 2, 1888, employed plaintiff, Ellis, by verbal contract, to make certain repairs and improvements in and about the building. TJp to September 15, 1888, Ellis performed work, furnished materials, and made repairs on said building, with Brisacher’s knowledge, to the amount of $1,111.15, of which sum Porter paid him $830.50, leaving a balance unpaid of $280.65. Porter in the meantime had paid the first month’s rent, and had also borrowed $600 from Brisacher; securing him for that sum and the second month’s rent by a chattel mortgage upon the furniture in the building. Porter paid no more rent, but remained in possession until September 17, 1888, at which time Brisacher bought from Porter the unexpired term of this lease, and paid him the sum of $750 cash therefor. Brisacher at once took possession of the property and improvements. On the 17th day of October, 1888, and within the statutory limit Ellis filed his statement, and took his mechanic’s lien on the premises, under the provisions of title 4, 2 Comp. Laws, 1888, p. 406, claiming $280.65 as due him from Porter. On the 15th day of November, 1888, this suit was brought for the foreclosure of said lien upon the property. On the hearing the court found that the plaintiff was entitled to a lien upon the hotel for the sum of $260.65, with interest. The court also found that the leasehold interest of Porter expired in April, 1893, and it should be
By the provisions of our statute (2 Comp. Laws, 1888, § 3806), “every person performing labor upon, or furnishing materials to be used in the construction, alteration, or repair of, any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct to create hydraulic power, or any other structure, or who' performs labor in any mining claim, has a lien upon the same for the work or- labor done or materials furnished by each, respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent; but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay.” The testimony shows that Porter was in possession of the St. Elmo Hotel under a lease from Brisacher; that this lease would not expire- until 1893; that Brisacher purchased from Porter all his rights tinder the lease for the sum of $750, and took possession of the property; that Porter employed Ellis to place repairs and improvements upon' the building, with Brisacher’s knowledge, for the purpose of making the building more
The remaining question is whether Brisacher took the lease ^subject to the lien created by Ellis. Under the statute above quoted, Porter had a leasehold interest in the. property, which was conceded by Brisacher to be worth the sum of $750. Whether he knew of the lien at the time of the purchase is not important. Indeed, the lien had attached, under the statute. But it may be a debatable question whether the lessor did not in fact know of the probable existence of this right to a lien at the time he purchased. His conduct in hastily taking possession, discharging and employing the help, taken in connection with his conversation with Ellis the same morning concerning his board bill, present circumstances upon which it is quite possible to build a theory that his purchase was not without some notice of Ellis’ claim. A conveyance procured in fraud of a mechanic’s lien will not have the effect of precluding the foreclosure of the lien, although notice of the lien be filed subsequent to the purchase, but within the statutory limit. Meehan v. Williams, 36 How. Pr. 73" court="None" date_filed="1868-08-15" href="https://app.midpage.ai/document/meehan-v-williams-6144266?utm_source=webapp" opinion_id="6144266">36 How. Pr. 73; Schafer v. Reilley, 50 N.Y. 61" court="NY" date_filed="1872-06-20" href="https://app.midpage.ai/document/schafer-v--reilly-3593994?utm_source=webapp" opinion_id="3593994">50 N. Y. 61. And,
It is claimed by counsel for the appellant that Brisacher re-entered and took possession for the breach of conditions in the lease, and that this terminated the lease and right to the lion. The facts do not justify this conclusion. The lease was never forfeited. No notice to quit or to surrender possession was given. No demand of possession was made, and the leasehold interest was not terminated by any act of the parties amounting to a forfeiture. Mr. Brisacher preferred to and did acquire Porters interest in the lease by purchase. He paid the agreed price, and took possession .of the premises, together with the improvements; and