221 F. 178 | 8th Cir. | 1915
Lead Opinion
This is an appeal from a decree of foreclosure of two mechanics’ liens upon two elevators in North Dakota situated respectively at Wales and at Mowbray. It is based upon a complaint upon two separate causes of action, one for the foreclosure of an alleged mechanic’s lien upon the Wales elevator and the other for the foreclosure of a mechanic’s lien upon the Mowbray elevator. Each cause of action is entirely separate and independent of the other. It is conceded in this court that there was no.error in that part of the decree which establishes and forecloses the alleged mechanic’s lien upon the Wales elevator, but the portion of the decree which adjudges the defendant below, the Linden Investment Company, a corporation, indebted to the plaintiff below, Honstain Bros. Company, a corporation, on account of the Mowbray elevator, establishes a mechanic’s lien upon it, and adjudges a foreclosure thereof, is assigned as error upon two grounds: That the evidence does not sustain the conclusion that the Investment Company ever contracted with or employed the Honstain Company to build that elevator as alleged in the complaint, and that there was no averment in the complaint and no evidence at the hearing that the Investment Company ever owned or had any right, title, leasehold, or other interest in the land on which the Mowbray elevator was situated.
Counsel for the Honstain Company cite the last section in support of their contention that the company is entitled to a mechanic’s lien upon the Mowbray elevator in the absence of any title or interest of the Investment Company in the land upon which it stands. This section 6248 has been in force in North Dakota since 1877. It was section 669 of the Code of Civil Procedure of 1877, section 4798 of the Revised Code of 1899, and section 6828 of the Compiled Daws. It is conceded that there was a time in 1895, when, under the statutes of North Dakota as they then stood, it was possible to secure a mechanic’s lien thereunder and to sell and remove a building from the land on which it was situated, although the owner of the building had no title to or interest in the land. But the Supreme Court of North Dakota deliberately and exhaustively considered, and then construed, this section and the other provisions of these statutes in the year 1900, and held that prior to that time the statutes of that state, as they existed in 1895, had been so changed that such a proceeding was unauthorized in that state, and that one could not maintain or foreclose a mechanic’s lien upon a building alone, and sell the same separate and apart from the land on which it was situated, unless the lienee had a leasehold on the land which had been forfeited, or there were existing liens upon the land when he furnished the labor or material for which he claimed his lien. After an extended discussion' of the question that court has made its decision and stated its conclusion in these words:
“As the law now stands in this state, no mechanic’s lien can attach to the building or the land, unless the party for whose immediate use and benefit the building is erected has some estate or interest in the land.” Gull River Lumber Co. v. Briggs, 9 N. D. 485, 488, 489, 84 N. W. 349, 350; Green v. Tenold, 14 N. D. 46, 49, 103 N. W. 398, 116 Am. St. Rep. 638.
These decisions are decisive of the question of law presented in this case. There was no' pleading or proof that the Investment Company ever had any title, leasehold, or other estate in the land on which the Mowbray elevator was situated, nor was there any proof that there
Ret the decree be reversed, and let the case be remanded to the court below, with directions to enter a decree in accordance with the views expressed in this opinion.
Concurrence Opinion
I concur in the result in the foregoing upon the ground that the evidence does not sustain the conclusion that the Linden Company ever contracted with or employed the Honstain Company to build the elevator at Mowbray, but do not concur in the reasons assigned in the foregoing opinion.