95 Mich. 62 | Mich. | 1893
The complainant purchased the premises in controversy at administrator’s sale, taking the usual .administrator’s deed. The license from the probate court upon which the sale was made directed that the property' be sold “ subject to all incumbrances, by mortgage or otherwise, existing at the time of the death of the -deceased,” John T. Atkinson. The report of sale shows that the complainant bought the property on September 10, 1889, for $25, “subject to all liens and incumbrances.” At this time the defendants claimed to have a lien upon the premises, and the inference from the proof is strong that both complainant and the administrator, as well as the defendants, who were present, understood that the sale was subject to this lien; the same, with other incumbrances, amounting to the value of the land, viz., about $3,800.
The history of this 'lien is substantially as follows: The defendants furnished a quantity of building material for a store -which was erected upon the premises, beginning in September; 1887, under a contract between themselves and Atkinson. On January 6, 1888, they filed á
“And, by consent of parties in open court, it is ordered that the execution be stayed in this cause, without a bond, until the first day of the next term of court, and that the amount of this judgment is a lien upon the property."
The costs were subsequently taxed at the sum of $73. Soon after this, Atkinson, the judgment debtor, died. Complainant, having purchased the premises, as already stated, went into possession under his deed in November, 1889, and, learning that the lien law of 1887 had been declared unconstitutional, on January 3, 1890, filed the bill in this cause to remove the cloud occasioned by this alleged lien. On July 18, 1890, defendants filed a new statement of their lien, in accordance with the law of 1885,, and on September 1, 1890, they assigned their interest in the lien and debt to the National Bank .of Oshkosh.
The decision of this Court in the case of Spry Lumber Co. v. Loan & Trust Co., 77 Mich. 199, 202, not only declared the lien law of 1887 unconstitutional, but stated that such statute, and “all its parts, must fall together, leaving the law of the State where it was before the law of 1887 was passed." This decision leaves defendants' lien to rest upon the law of 1885. By the terms of that act the lien attaches to the land when the vendor furnishes material for a structure to be erected thereon under a contract with the owner. Act No. 216, Laws of 1885, §§ 2, 3. In this particular it differs from other lien laws,
We may next inquire whether this lien has been lost by any act of the defendants. Previous to the passage of the act of 1887 the authority to enforce these liens had been vested in courts of chancery. An attempt was made by the act of 1887 to give this power' to a court of law, by authorizing the court, in an action upon the contract, to-declare the judgment a lien upon, and enforce it against, the land. Defendants accordingly began an action and took a judgment against Atkinson, claiming a lien upon the premises, whibh, as already appears, the parties agreed should be a lien. Defendants contend that this is a valid judgment to the extent of establishing their lien, while-complainant contends that it is a valid judgment, but only to the extent of making defendants ordinary judgment creditors, to the exclusion of their lien, which he claims was waived by their taking a personal judgment. We have no doubt that the judgment is valid^ as a personal obligation, as it was rendered in a proceeding which, in every respect, seems to have followed the course of an
We may next inquire whether the defendants have waived their lien by taking this personal judgment. A lien once established, the burden is upon the owner of the estate charged to show its relinquishment, and, while this may be inferred from circumstances, it may also be rebutted. It is said by at least one author that “the question of waiver is always one of intention.” Adams, Eq. 128, 129. If so, it is necessarily one of fact. Cordova v. Hood, 17 Wall. 1, 9; Coit v. Fougera, 36 Barb. 195. In •this case there is nothing to show such intention. True, a personal judgment was taken, but it «was accompanied by acts which clearly show an intention to preserve, rather than to relinquish, the lien; and no effort has been made •to collect the judgment by the ordinary process of the -court. It cannot be successfully contended that the taking •of the judgment, alone, would have such effect. Many cases hold that the substitution of one form of personal liability for •another leaves the lien unaffected. Cordova v. Hood, 17 Wall. 1; Fish v. Howland, 1 Paige, 20; Warner v. Van Alstyne, 3 Id. 513; Shirley v. Sugar Refinery, 2 Edw. Ch.
Having reached the conclusion that defendants’ lien attached at the time that they furnished the material for Atkinson, it logically follows that, as against complainant, it existed, as a valid charge upon the land, at the time the bill was filed, and the assignment subsequently made cuts no figure in the case.
The decree will be affirmed, with costs of both courts.