100 Kan. 328 | Kan. | 1917
The opinion of the court was delivered by
This action involves the priority of liens upon two city lots, described as lots 7 and 8 in block 9 in an addition to Lawrence. The claim of the plaintiff, the Logan-Moore Lumber Company, to a mechanic’s lien, was sustained, but it was made subordinate to a lien given to J. D. Bowersock for a loan made to Louis C. Brown to enable him to improve the property by building two houses upon it, and for the expenses of completing the buildings after Brown had abandoned the work. The plaintiff appeals from the judgment upon the ground that it was entitled to a prior lien. The facts are the same with respect to each of the lots, except as
The lot originally belonged to Bowersoek’s wife, who contracted to sell it to Brown for $600. At the same time, and as a part of the same transaction, it was arranged that Bower-sock was to make a loan to.Brown of $2000, for which the lot was to be security, and which was to be used in erecting a house thereon. Brown paid $300 down, and on May 17, 1915, Mrs. Bowersoek executed to him a contract by which she acknowledged this payment and agreed to deed him the lot upon his paying $2300 additional — $300 in ninety days, $500 in one year and $1500 in two years, the $300 being for the balance of the agreed purchase price, and the remaining $2000 representing the money vto be lent to Brown, the legal title being thus retained by her as security for the repayment of the loan to her husband, as well as for the payment to herself of'the balance of the purchase price. It was agreed that the money constituting the loan was to be turned over by Bowersoek in installments as the work upon the building progressed (the first one, for example, of $600, to be made upon the completion of the foundation), and Brown was required. to show in each instance that all liens for labor and material had been waived before he was entitled to receive the money. Brown entered upon the construction of the building, and Bowersoek at different times made payments to him, amounting in the aggregate to $1600. These payments were made by Bowersoek upon the faith of documents shown him by Brown, which were signed by laborers and materialmen, including the plaintiff, releasing their right of lien in favor of any one making a loan on the property, and agreeing that such a mortgage should have priority over any claim on their part; a statement was added (which was in fact untrue) that the owner had paid up in full to that time for the construction of the house. At this stage of affairs, on June 12, 1915, Brown abandoned the work and left the community. The plaintiff had at this time furnished material to the amount of $537, for which it was entitled to a lien, which was afterwards per
The facts with respect to the other lot are the same, except that the amount loaned upon it by Bowersock was $1100, the value of the improvements at the time Brown abandoned work was $500, and the amount spent in completing the work was $2385.50.
The lien allowed Bowersock on the entire property was $7662.39, which included some expenditures for sidewalks and small items in finishing the buildings outside of the original plans.
The lien of Mrs. Bowersock for the unpaid part of the purchase price was made subsequent to those of her husband and the plaintiff.
The material part of the documents referred to as waivers of liens reads as follows:
“Now therefore, in consideration of $1.00, cash, in hand paid to us, and each of us, by the owner, we, the undersigned, do hereby, release all our right of lien on the above described property that we have, or may have on account of labor performed or material furnished, or that was caused to be furnished by or through us, that is now used and in position in said house, in favor of any private individual, bank, or Loan Association that has made a loan on said property, or that may make a loan on the same, and that said mortgagee shall have priority over any claim that either of us may have on account of labor performed or material furnished that is now used, and in position in said house, on lot heretofore described. And we further state that the owner has paid up in full, as per his agreement, to this date, for the construction of said house.”
“Defendants further allege that it was understood and agreed between the defendant L. C. Brown and defendant J. D. Bowersock that contract marked Exhibit ‘A’ [the contract by which Mrs. Bowersock agreed to make Brown a deed upon his paying her $2300], and application marked Exhibit ‘B,’ above referred to^ [Brown’s application to Bowersock for a loan], should be treated and considered as a part of one and the same transaction. That while the amount of the purchase price stated in contract, Exhibit ‘A,’ is $2,600.00, it was and is, in truth and fact, to be only $600.00, $300.00 of which was paid in cash at or before the time of the execution of said written contract and the balance of $300.00 to be paid within ninety days from the date thereof.”
The fair inference from these allegations is that the $2000 was added to the amount of the purchase price to represent the loan to be made by Bowersock to Brown, and that the holding of the title by Mrs. Bowersock after the receipt of the $300 due her was for the benefit of her husband. ■ The evidence on this point was not as explicit as it might have been,
“Q. I hand you the two contracts relative to those lots; you will observe there that the consideration stated, or the amount to be paid is $2,600.00. Tell the court why that was $2,600.00 instead of $600.00; for what purpose that was inserted there? ... A. Because it had been arranged that I would advance him $2,000.00 as the buildings progressed.
“Q. What security were you to have for this advancement? ... A. I had this property.
“Q. Providing what? A. Providing that he didn’t get a deed until he paid for it.”
The sufficiency of the cross-petition is challenged on the ground that the verification in behalf of Mrs. Bowersoek is defective in not showing the grounds upon which it was made by her husband as her agent. It recited that the facts were within his personal knowledge, which is all that the statute requires when that condition exists. (Civ. Code, § 116; Gibson v. Shorb, 7 Kan. App. 732, 52 Pac. 579.)
The judgment is modified by giving the plaintiff’s lien precedence over $351.39 of the mortgagee’s claim, and as so modified is affirmed.