57 N.W. 343 | N.D. | 1893
This appeal brings before us a contest for priority of lien. The strife is between a mortgagee of real property and the holder of a mechanic’s lien thereon. So far, the mortgagee has been successful. The trial court decided that the respondent’s mortgage lien was prior to that of the appellant, as to th'e entire property. The appellant does not challenge the correctness of'this ruling, so far as the land itself is concerned, but insists that his lien upon the building on the land is superior to that of the respondent’s mortgage. We must examine the facts: On May 7th, 1886, the respondent, being the owner of the land, agreed to sell it to one Bauer; and on July 23, 1887, he executed to Bauer a deed for the premises, taking back from Bauer a mortgage to secure a portion of the purchase money. The building on the land at the time the contract of sale was entered into was a brewery. Subsequently, and before the deed was delivered, this building was partially destroyed by fire. The building consisted of several parts, but all under one roof. As the extent of the ravages of the fire throws direct light on the question whether an entirely new structure was erected, or only the remains of an old one added to, we must quote the finding of the court on that subject. It is as follows: “While defendant Bauer was in possession of the premises aforesaid, the said brewery and ice house buildings were partially destroyed by fire; that is to say, the frame or wooden portion of the same, above the stone foundations, was almost wholly destroyed. Nearly all of the third story of the southern or main ice house was burned, leaving the three floors (this part of the building was three stories high) and all that part of the buildings beneath the floor, and leaving also, unburned, a small part of the siding and studding of the third story. There remained of the ice house number two, unburned, two floors and all beneath them, and a small part of the siding and studding, this part of the building being two stories only. The .northern ice house was nearly all burned, a small part of the siding, studding, and stone walls, only, remaining of that part of the building called the ‘Brewing Room;’ there remaining after the fire the
We will now turn to the statute upon which appellant relies for support: Section 5469, Comp. Laws, gives a lien to any person who shall furnish any material for any building, erection, or other improvement upon land. Section 5480, which is the important section, declares that “the lien for the things aforesaid or work, shall attach to the buildings, erections or improvements, for which they were furnished or done, in preference to any prior lien or incumbrance, or mortgage upon the land upon which the same is erected or put and any person enforcing such lien, may have such erection, building or other improvement, sold under execution, and the purchaser may remove the same within a reasonable time thereafter.” We are clear that it was not the purpose of the legislatui'e to give one who had furnished materials to repair an existing structure a lien on the entire building superior to a mortgage thereon at the time the materials were furnished. This would take from the mortgagee a portion of his security without his consent. It would be an unconstitutional invasion of a property right. See Meyer v. Berlandi, 39 Minn. 438, 40 N. W. 513; Croskey v. Manufacturing Co., 48 Ill. 481. The appellant does not claim that he would have the entire building