| Or. | Oct 15, 1882
By the Court,
This was a suit to foreclose a mortgage, brought by the appellant, Inverarity, against the mortgagor and the respondents, as subsequent lien holders, under the act of October 28, 1874, providing for liens in favor of mechanics and others, and certain other parties having subsequent mortgages on the same property. The mortgagor, as well as the subsequent mortgagees, made default, and the respondents only, as holders of mechanics liens, appeared and defended against the suit. Each of the latter filed a separate answer, but it is conceded that they are substantially alike, and raise the same questions.
The material allegations in the complaint are not denied in the separate answers, but respondents set forth, as an affirmative defense, that subsequent to the execution and • recording of the appellant’s mortgage, Geo. Header, the mortgagor and owner of the four lots covered by the mortgage, commenced the construction of the dwelling house upon the premises, and personally superintended such construction, and contracted for and received the labor and materials from the respondents, for which their liens are claimed, and expended the same in the construction of such
The court decreed that the building be sold separately from the land, with the right of removal by the purchaser, and the proceeds applied first to the satisfaction of the mechanics liens held by the respondents. The land was ordered sold, in several different parcels. The case is now before us, on appeal from this decree.
The most important questions thus presented, are, whether the court erred in directing a sale of the building separate from the land; or, in deciding that the respondents should be first paid out of the proceeds of such sale. The pleadings show that Eeader was the owner of the mortgaged premises, and built the dwelling house himself; that respondents performed the labor and furnished the materials, for which they claim liens, under contracts with him; and that no work was commenced, or material furnished, or
At common law, the building in question, which appears •from the record to have been a large and expensive dwelling house, and to have been erected on the premises by the owner of the freehold, would plainly be held a part of the freehold as soon as it was annexed, and subject to the lien of appellant’s mortgage. The respondents claim, however, that the passage of the mechanics lien act of 1874, above referred to, had the effect of changing the common law rul§ upon the subject, so far as the lien is concerned for which the act provides. Reference is made to recent statutes in some of the states, where such change has been made, in express terms, or by necessary implication. (Revised Statutes of Illinois, 1874, sec. 17, page 667; Revised Statutes of Missouri, 1879, sec. 3174.)
But there are no such provisions in the mechanics lien act of this state, and as the intention to give a lien, both on the superstructure as well as the land, to the extent of the interest of the person erecting, or procuring the erection of the same, is apparent, we have no doubt it should be deemed a lien on realty, and upon buildings or superstructures, as constituting part of the realty, wherever that would be their status under the common law doctrine. (Phillips on Mechanics’ Liens, sec. 176; Belding v. Cushing, 1 Gray, 579.)
The provisions, in the second section, for the enforcement of the lien against buildings or superstructures constructed, altered or repaired, under contracts with the owners of leasehold interests merely, must, we think, so far as the power of removal is concerned, be construed to embrace buildings or superstructures of that class only which the lessee himself might, at common law, remove at any time during his term, before surrendering possession, and may be
The respondents claim further, that as the record shows the appellant appeared by attorney in the circuit court, after the decree was entered, and obtained an order for the issuance of an execution thereon, she cannot now be permitted to prosecute this appeal for a reversal of such decree. The principle, as we understand it, which the respondents seek to have applied here, is that where the provisions of a judg
But such is not the case here. The decree for the sale of the property, except as to the sale of the dwelling house separate from the free!) old, which was beyond the power of the court to direct, in our opinion, may well stand and be enforced, and yet the portion directing the application of the proceeds, be reversed or modified. But the respondents assume that even though the circuit court did err, as claimed by appellant, still she does not appear to have suffered any injury in consequence, and hence has no right of appeal. But the general rule is, that when error is shown, injury is presumed, unless the contrary affirmatively appears from the record itself. It cannot, we think, be asserted with sincerity, that the errors found to exist in the decree in this case, may not, so far as anything disclosed by the record is concerned, injuriously affect the appellant’s substantial rights. On the contrary, the possibility of such a result is quite apparent.
The decree of the circuit court, so far as it directs the sale of the building separately from the ground upon which it stands, and the application of the proceeds, must be reversed, and said decree so modified as to direct the sale of said building and parcel of ground on which it stands, composed of the remainder of lot 11, after disposing of 36 feet off the east side thereof, and the remainder of the lot No. 12, after disposing of a like number of feet off the west side thereof, as per the decree of the circuit court, situate in block No. 3, in Bigelow’s addition to Dalles city, Oregon,