90 Iowa 212 | Iowa | 1894
1. The lots on which the respective liens are claimed were purchased of Hon. J. H. Shields, through Peter Kiene, Jr., who took, and held the title for Hodge till April 8,1888, when he conveyed the same to Hodge. At the time Hodge took the title he gave J. R. Vogel a mortgage for one thousand, five hundred dollars, the loan being obtained through Peter Kiene & Son, as agents, which remained till June 2, 1890, when the mortgage in- suit was given to the plaintiffs, through Peter Kiene & Son as agents, the one thousand, five hundred dollar mortgage being included therein. The eight thousand dollar loan by plaintiffs was for the purpose of erecting a building on the lots, and it was so used. On the twenty-sixth day of August, 1890, Hodge made a contract with one Spauld-ing to furnish and drive the piling for the building, and the work was commenced in a few days thereafter. The. stakes to indicate the lines of the property, with a view to definitely locate the building, were set by the engineer in August or September, 1890. The plans for the building were commenced by the architect the latter part of August, 1890. No materials for the building were furnished before October, 1890. These
We are clearly of the opinion that it was not. Until these water lots are filled they are not proper places for the erection of buildings. The filling of these lots is rather a making of the lot than a part of the making of a building or improvement thereon. When filled they are called “made ground,” or “filled ground,” and they are then nothing but naked lots. The fact that they are filled merely as an improvement to the lot, without reference to building, shows that the filling is an improvement distinct from the erection of buildings. We can not better illustrate our view of what is the commencement of a, building, within the spirit of the mechanic’s lien law, than by giving 'the rule cited by appellant as adopted in Pennock v. Hoover, 5 Rawle, 291. It is one of the earlier cases, and has been many times cited. Let it first be said that that case involves no question as to filling, but the act there held to be the commencement of a building was the digging and walling of the cellar. The judge who delivered the opinion gave what he considered the universal understanding as to what constitutes the commencement of the building of a house, which is “the first labor done on the ground, which is made the foundation of the building, and to form a part of the work suitable and necessary for its construction.” That is the rule we intend to apply. What was made the foundation of the building in this case? Not the lot as it was with its surface eight feet under water, but the ground constituting the lot when filled; and the first work done thereon was the driving of the piling. That was work “suitable” and “necessary” for the construction of the building. The rule of the Pennock case is adopted in Brooks v. Lester, 36 Md. 65, and is quoted with approval in Conrad v. Starr, 50 Iowa, 470. The case of Jean v.
II. Appellants insist that in any event they should have a prior lien as to the building, and an order for its sale and removal under the provisions of section 9, chapter 100, Acts Sixteenth General Assembly. Such orders are made in the discretion of the court, under the terms of the section, and involve a finding of equities for their support. When Hodge concluded to erect the building, he applied to Kiene & Son as agents for plaintiffs, for the loan of $8,000 to erect the building, and the loan was made for that purpose, and the money paid out by Kiene & Son to the material fur-nishers and others as the building progressed, including the defendant companies. The lots, independent of the building, were not sufficient security for the loan, and the mortgage was taken with the understanding that the money was to be applied in increasing the value of the security by the erection of the improvement. The