Inman v. Henderson, 29 Or. 116

Inman v. Henderson

29 Or. 116 | Or. | 1896

1. The deeree did not establish the liens as against the mortgagee, and hence did not affect any of its substantial rights, or afford it any grounds for an appeal. The material question between the lien claimants and the respondent, in the court below and here, is the validity of the mechanics’ liens as against the mortgagee. The court below in adjusting these rights held that as between the lien claimants and Mrs. Henderson the lien was valid, because their right thereto was revived by her ordering additional material for that express purpose, but that such an arrangement between the owner and the lien claimants was not binding on the mortgagee. And in this view, so far as it affects the interests of the mortgagee, we fully concur. The lien claimants in this case were not original contractors, but material men, and, under the statute, were required to file-, their liens within thirty days after they ceased to. *120furnish material or after the building was completed: Ainslie v. Kohn, 16 Or. 363 (19 Pac. 97). We take the law to be that a material man who furnishes material directly to the owner on a running account as ordered from time to time is not an original contractor in the constm tlon of the building for which the material is furnished, within the sense of the statute, and must file his lien within thirty days. This is the construction of the mechanics’ lien law of California, after which ours is largely modeled: Sparks v. Butte County Gravel Mining Company, 55 Cal. 389; Schwartz v. Knight, 74 Cal. 432 (16 Pac. 235).

2. In this case the time within which the lien claimants’ liens could be filed had expired before any additional articles were ordered or furnished, and if the furnishing of such articles, under the circumstances disclosed by the evidence, revived or renewed their liens as against the owner, it could not affect the rights of the mortgagee who was not a party to the transaction: Brown v. Moore, 26 Ill. 421; Kelly v. Kellogg, 79 Ill. 477; Central Trust Company v. Chicago K. and T. Railway Company, 54 Fed. 598. One who takes a mortgage on land after the construction of a building thereon has been commenced, holds it subject to any valid mechanics’ lien the claim of which may be filed within the time required by statute, (Code, § 3671,) but the interests of the mortgagee cannot be affected by any agreement between the owner and the lien claimant extending the time in which to file such claim, even *121if such agreement is valid as between them: Phillips, on Mechanics’ Liens, §§ 297, 322a, 327.

The appellants contend that, as no appeal has been taken from the decree of the court establishing the liens as against Mrs. Henderson, it is valid and binding on all the parties to this suit, so that the question on this appeal is one of priority between the - established mechanics’ liens and the mortgage. As to Mrs. Henderson, the decree of the court below must, of course, be accepted as correct, because she has not appealed, but the appeal before us challenges its correctness so far as it subordinates the liens for material to that of the mortgagee, and we think the mortgagee, having denied by its answer the validity of the mechanics’ liens, may insist on this appeal that they are void as against it, for any sufficient reason appearing from the record, and that it was not compelled to appeal from the decree against Mrs. Henderson to raise that question.

It follows that the decree of the court below must be affirmed. ' Affirmed.