222 P. 1062 | Mont. | 1923
delivered the opinion of the court.
This action was brought by plaintiff to foreclose a material-man’s lien on a theater building and the land on which the same was erected. The defendants in the action were Theatorium Company, owner of the land and building, Northwestern Mutual ‘Savings & Loan Association, a mortgagee (for convenience hereafter referred to as the association), Thompson Yards, Incorporated, and others, claimants of mechanics’ or materialmen’s liens.
Thompson Yards filed an answer and cross-complaint, praying for a foreclosure of its lien “upon the said theater building, and upon the land and premises on which the same is located, for the sum found due this defendant,” and for a decree directing that the lands and premises be sold under the order of the court, etc. The other defendants answered likewise, except that the association alleged that on September 25, 1919, the defendant Theatorium Company had executed to it, the association, two mortgages, one for $20,000 and one for $10,-000, covering the land and the tenements, hereditaments and appurtenances thereunto belonging. These mortgages, it alleged, were superior to the liens of the defendants Thompson Yards and others.
The court made findings of fact, in which it found that the Theatorium Company at all times was the owner of the west fifty feet of lots 5 and 6 of block numbered 30 in the original town site of Red Lodge; that on or about June 20, 1919, Thompson Yards entered into an agreement with the Theatorium Company to furnish lumber and other building material
In its conclusions of law the court found that the “Theatorium building is subject to the liens of said plaintiff and said defendants,” and “said plaintiff and said defendants named in these conclusions of law as having liens are entitled to have execution issued and said Theatorium building sold to satisfy the amounts of the said several liens above specified, including attorneys’ fees, costs and costs of filing the claims of said liens.” In its decree the court adjudged the Theatorium building to be subject to the liens of plaintiff and defendants for the respective amounts due them; it further adjudged that all of the liens are prior to the mortgages of the defendant Northwestern Mutual Savings & Loan Association; “that the plaintiff and said defendants named as having liens are entitled to have execution issued and said Theatorium building
Section 8342, Revised Codes of 1921, provides: “The lien given extends to the lot or land upon which any such building, improvement, or structure is situated, * * # to the extent of the whole lot or lots upon which the same is situated, if the land belonged to the person who caused said building to be constructed. * * * The liens for work or labor done, or material furnished, as specified in this Chapter, shall be prior to and have precedence over any mortgage, encumbrance, or other lien made subsequent to the commencement of work on any contract for the erection of such building, structure, or other improvement.”
The Thompson Yards lien was for material furnished under a contract which was in operation before the mortgages- were in being; the mortgages were executed and delivered subsequent to the commencement of the work on the contract for the erection of the theater. The lien therefore operated against the land as well as against the building. Had the mortgages been given prior to the commencement of work on the contract for the erection of the building, then a decree giving Thompson Yards a lien on the building only would have been correct. (See. 8344, Rev. Codes 1921.) It is true that the lien extends to the building primarily (Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 144 Pac. 772), but if the land upon which the building is erected “belongs” to the person who causes the building to be constructed, the lien ex
Counsel for the association attempt to obviate the force of section 8342 and the authorities last cited by asserting that it cannot be ascertained from the record when there was a commencement of work. The record discloses that 'the building was in course of construction when the mortgages were executed. It also discloses that Thompson Yards had delivered to the Theatorium Company over $8,000' worth of lumber and cement which was used in the construction of the building before September 25, 1919, the date of the mortgages. This appears from the lien which is annexed to and made a part of the counterclaim of Thompson Yards, the allegations of which are undisputed.
Counsel for the association also say that Thompson Yards is precluded from objecting to the provisions of the conclusions of law and decree because it did not challenge the findings as defective; and they attempt to invoke sections 9369 and-9370, Revised Codes of 1921. But counsel are in error, for, as was pointed out in Cobban v. Hecklen, 27 Mont. 245,
From what has been said it follows that the district court of Carbon county should be directed to modify its decree so that it will give to the defendant Thompson Yards a lien on both the building and the land upon which the same is situate, in preference to the mortgages mentioned above, and it is so ordered. When so modified the judgment shall stand affirmed.
Bemanded, with, directions.
