2 N.D. 246 | N.D. | 1891
The opinion of the court was delivered by
This is a contest for priority between plaintiff, the Haxtun Steam Heater Company, a mechanic’s lien holder, and the defendant, the Dakota Investment Company, a mortgagee. There was a decree below for the plaintiff, and the investment company appeals. Section 5478 of our Compiled Laws reads as follows: “ The liens for labor done or things furnished shall have priority in the order of the filing of the accounts thereof, as aforesaid, and shall be preferred to all other liens and incumbrances which may be attached to or upon said building, erection, or other improvement, and to the land on which the same is situated, or either of them, made subsequent to the commencement of said build
Mechanic’s lien statutes, containing provisions similar to cr identical with the section quoted from our statute, exist in many of the states, and have been frequently before the courts. The precise point here raised has not been often ruled, nor, unfortunately, have the rulings been uniform, yet we are clear that the holding of the lower court has the support of the decided weight of authority as well as sound principle. Appellant cites us to the case of Welch v. Porter, 63 Ala. 232. That case was decided under a statute which declares that the lien conferred thereby “ should attach and be preferred to all other incumbrances which may be attached to or upon such buildings, erections, or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” It must be admitted that this case fully sustains appellant’s position, and goes even further, for the court say: “Nor do we doubt that when, by the terms of the contract, one person is to do the labor, and another is to furnish the material, the lien of each attaches from the time he commences the performance of his contract.” And again: “If we were to hold that, because a building had been commenced, a subsequent contractor or material-man could acquire a lien which would
Norris’ Appeal, 30 Pa. St. 122, is an instructive case, and discusses many of the principles that ought to govern this case.