126 N.W. 99 | N.D. | 1910
The only question to be settled on this appeal is whether a mechanic’s lien, under our statute, will attach to the interest of a vendor under an executory contract of sale whose vendee is in possession, and who makes improvements by erecting buildings on such real estate, the lien being claimed for material for the erection of such buildings. This action was brought by the respondent, Johnson, against one Footitt and the appellant, Soliday. Appellant had sold to Footitt certain lots under an' executory contract, on which partial payments only had been made. Respondent sold and delivered to Footitt certain material for the erection of a dwelling house, barn, and ice house upon the premises described in the executory contract, and filed a mechanic’s lien therefor. This action was brought to foreclose such lien, not only as to the interest of Footitt in the property, but as to that of Soliday also.- Plaintiff had judgment in the trial court, and defendant Soliday appeals. Section 6237, Rev. Codes 1905, as far as material, reads: “Any person who shall perforin any labor upon or furnish any materials * * * for the erecting * * * of any building or other structures upon land * * * under a contract with the owner of such land * * * or with the consent of such owner, shall, upon complying with the provisions of this chapter, have * * * a lien upon such building, erection or improvement and upon the land belonging to such owner on which the same is situated * * * to secure the payment for such labor, material, machinery or fixtures. * * * The owner shall he presumed to have consented to the doing of any such labor or the making of any such improvement if, at the time, he had knowledge thereof, and did not give notice of his objection thereto
In the light of these provisions we must decide whether the appellant was the owner of the lots in question within the terms of the mechanic’s lien law. We are of the opinion that she was not such owner. The two sections last quoted seem to indicate that the owner meant is the person who owns an interest therein, and for whose immediate use and benefit the improvement is erected, and with whom the contract is made. This question was decided in Salzer Lumber Co. v. Claflin, 16 N. D. 601, 113 N. W. 1036, and needs no extended discussion at this time. This court there said: “The materialman is simply subrogated to the interest that the vendee had in the contract, and no more. The vendor’s rights are not at all to be affected.” The vendor holds the legal title, and in relation to mechanics’ liens is the holder of the legal title as security for the payment of the purchase price, and the vendee is the equitable owner. Their relations are analogous to those of a mortgagor and mortgagee, where the, material or work is contracted for by the mortgagor after the recording of the mortgage. In such case the lien of the mortgagee is not affected by the mechanic’s lien, and we see no reason why the person holding the legal title as security should be placed in a less secure position than if he only held a mortgage. Salzer Lumber Co. v. Claflin, supra; Revised Codes 1905, section 6242.
But it is contended that the last paragraph of section 6237 quoted modifies the statute as it stood prior to this paragraph being added, and that because it is shown that the appellant frequently drove past these premise’s while the buildings were being erected, and therefore must have had knowledge of the fact, and failed to give any notice that she objected thereto to the respondent, the lien attaches to her interest. This provision must be read in the light of the other sections which we have cited, and, when so
These views necessitate the reversal of the judgment. It is reversed.
Note — As to mechanic’s lien on building erected by vendee see note to Zabriskie v. Greater America Exposition Company, 62 L. R. A. 380.