88 Iowa 475 | Iowa | 1893
The defendants Mary M. Kelly and Mary M. K. Judd are the same person. The pleadings and stipulations of the parties cover about one hundred printed pages. We shall endeavor to state the facts touching the matters in controversy between the parties, in so far as they are material to the questions raised by these appeals:
Prior to November 1, 1882, the defendant S. R. Kelly had been negotiating with the officers of the defendant, the Chicago, Milwaukee & St. Paul Railway Company for the purchase, of them, of a tract of ground-lying at the side of, and ádjacent to, the right of way of said company at Sanborn, Iowa. Pending these negotiations, Kelly had entered into possession of the premises, and begun the erection thereon of. a large brick-veneered hotel building. When he went into possession and began to improve the property, it was with the understanding had with officials of the railway company that the company would make him a deed to the land. After he had his material on the ground, and the building partly erected, he learned that the company would not give him a deed, but would lease it to him for a term of twenty years. He then entered into a contract with the railway company, leasing the ground for twenty years.
The lease provided, among other things, that Kelly should pay one dollar per, year as rent for the ground; that he should keep and operate a hotel and railway eating house upon the premises. Under certain circumstances the lease might be forfeited, in which case, as well as at the expiration of the term, the lessor was
May 9, 1883, Kelly borrowed of the plaintiff two thousand, five hundred dollars, giving his note therefor, due May 9, 1888, and drawing eight per cent, interest, and secured by a mortgage in the form of real estate mortgage on the land on which the buildings were situated. This mortgage was filed for record, and recorded as a real estate mortgage, on May 16, 1883. The mortgage recited that the premises were free from incumbrance. June 1, 1888, the plaintiff began his action to foreclose this mortgage, making all the parties heretofore mentioned parties defendant, and claiming a first lien on said property. September 19, 1888, the railway company filed an answer setting up their ’.lease with Kelly, and claiming that he had no right to mortgage the property. The plaintiff demurred to this answer, but. the demurrer was withdrawn, and no further steps taken in the case, so far as the railway company was concerned.
December 14, 1888, the defendants Wheeler & Flint answered, denying generally, and claiming that on January 7, 1888, they contracted with Kelly to furnish him materials for an addition to said hotel building; that they furnished same, to the value of five hundred and twenty-nine dollars and ninety-nine cents, prior to May 26, 1888, according to contract, which were used in said building; that they filed a statement for a lien; and that an action was pending to enforce their lien, and asking that their lien be decreed prior to plaintiff’s mortgage.
September 11,1889, the defendants MaryK. Judd,
September 11, 1889, judgment was rendered against the defendant, S. R. Kelly, on default, in favor of the plaintiff, on his claim, and a decree of' foreclosure entered against him. The plaintiff replied to the pleading of Judd, denying knowledge or notice-of her mortgage at the time he made his loan. May 10, 1890, Wheeler & Flint filed a cross petition setting-out that they had secured a judgment on their lien' claim, had sold the property, and bid in the same at the sale, and claimed the premises as.against all the parties to this suit. Fletcher was not a party to- the lien foreclosure. May 27, 1890, the plaintiff filed a demurrer to-the said cross petition of Wheeler & Flint, which was sustained. June 3, 1890, Judd filed an amendment toller answer, claiming that the property was personal,, and that the plaintiff’s mortgage was no lien thereon,, and that she had no notice of the plaintiff’s mortgage. A decree was entered in the case on June 19, 1891, wherein the plaintiff’s mortgage was decreed to be a. first lien upon the property, including all the buildings, the defendant Judd’s chattel mortgage a second lien on the buildings only, and Wheeler & Flint’s mechanic’s lien a third lien on the premises. -
I. It is claimed that, at the time the plaintiff
What constitutes a fixture, in a given case, is a question upon which the authorities are not agreed, and we shall not undertake the unprofitable task of attempting
Now, it is clear that, by virtue of his lease, S. R. Kelly owned an estate in land, and on this land the buildings in controversy were situated. We have held that a homestead may exist in a leasehold interest in real estate. Pelan v. De Beyard, 13 Iowa, 53. And a. sale of a leasehold under execution, having more than-two years of an unexpired term, may be redeemed, from. Code, section 3098. . And under our law any conveyance of real estate passes all the interest of the-grantor therein, unless a contrary intent can be reasonably inferred from the terms used. Code, section 1930; Frederick v. Callahan, 40 Iowa, 311. That such a. leasehold estate as that at bar constitutes an interest in lands is clear; and it follows that a conveyance of it-by mortgage carries with it the buildings or improvements thereon, unless a contrary intent appears.
In view of the principles of’ law above stated, was-this property, including the buildings and improve
Now, what was the intent of Kelly as to making these improvements fixtures? It appears that, without conflict, at the outset, he expected to obtain a deed from the railway company for the land, and, while having this understanding with the superintendent of the company, Kelly got his material upon the ground, and had-the building in the course of erection, when he
But the lease itself clearly shows Kelly’s intention. By its terms he was required to maintain upon the demised premises a good, substantial building, with all the customary outhouses, and other improvements and appurtenances, to be used and occupied as an hotel and eating house; and said buildings were to be so located as to be convenient for the purposes for which they were designed.^ They were to be kept in a clean and healthy condition. He bound himself, during the term of said lease, to carry on and conduct an eating house and hotel to the satisfaction of certain officers of the railway company. He was to keep the buildings and contents insured, and, if the hotel was damaged by fire, was to rebuild- it. He was required to keep the buildings in good repair, and to pay all taxes on the property. If the lease was determined by lapse of time, and the company should refuse to renew it, they were to pay the appraised value for the improvements. If it was determined by forfeiture, they were to pay two-thirds of the appraised value. If, at the end of the term, Kelly refused to renew the lease, the company had the option of taking all the improvements at the appraised value, or of requiring Kelly to move them oft within sixty days after notice. Under the terms of this lease, Kelly could not, in any event, remove any of the buildings, unless permitted to do so by the company. Under the definition given by this court in
It will be observed that the statute only protects subsequent purchasers for value, and without notice. We have said that the term “subsequent purchaser” means one who claims under some common grantor, under the same chain of title. Rankin v. Miller, 43 Iowa, 11. And we have held that a judgment creditor is not a subsequent purchaser, within the meaning of this section. Norton v. Williams, 9 Iowa, 528; Bell v. Evans, 10 Iowa, 353; Seevers v. Delashmutt, 11 Iowa, 174; Hays v. Thode, 18 Iowa, 51; Chapman v. Coats, 26 Iowa, 288. We think that a mechanic’s lien holder does not come within the protection afforded by the statute. He is not a purchaser, not more so than a judgment creditor, and hence must, at his peril, take notice of all liens and incumbrances, whether recorded or not. His lien attaches to the real estate, subject to all outstanding equities, whether he had notice of them or not, except in so far as this rule may be modified by the mechanic’s lien statutes. See Miller v. Stoddard, 52 N. W. Rep. (Minn.) 895. Kelly and Judd then having, as between themselves, elected to treat these buildings as chattéls, and mortgaged them as such, Wheeler & Flint were bound to ascertain, at their peril, the facts touching the Judd mortgage, and act accordingly. It does not appear that, when they purchased the property under their lien judgment, they had no knowledge of the Judd mortgage. If it did, the rule might be different. Weaver v. Carpenter, 42 Iowa, 343.
The decree of the court below is affirmed.