79 Ky. 190 | Ky. Ct. App. | 1880
delivered the opinion of the court.
The Louisville Building Association conveyed to Susan .A. Peyton, a married woman, a certain lot or parcel of ground in the city of Louisville, in consideration of the sum of two thousand four hundred and fifty dollars, evidenced by certain notes then executed, and to be paid in monthly installments. A lien was expressly reserved in the deed securing the payment of the purchase money. It appears from the proof and the admission of the appellant (the Building Association) that twelve hundred and fifty dollars -of the amount for which the notes were executed was, in fact, money loaned to enable the feme to build a house, and formed no part of the consideration for the lots. After the ■execution of the deed Peyton and wife erected a house on the premises, and executed a mortgage to the appellee Xorb, to secure the payment of $170. Davis & Gage and ■others had liens for material furnished in the construction of
The second section designates the tribunal in which the liens may be enforced, and the sixth section provides that
The eighth section authorizes a sale of the interest of the employer and a removal of the building when his title is less than a fee-simple, as a lease for years, &c. The provisions of the statute cited leave no room to question the intention of the legislature, as it is manifest the purpose of the law was to give to the mechanics, material men, See., a lien on the building constructed by them superior to all other liens; and we see no reason, where the employer is the owner in fee of the property, for withholding from the chancellor the power to sell the entire property and distribute the proceeds according to the rights of the parties, and such, in our opinion, is the spirit and meaning of the sixth section of the act. It is true the chancellor may rent the property or cause the building to be removed; but when such action would result in serious loss to the parties, a sale should be ordered. In this case, however, all the parties have consented to the sale, and the question arises as to the proper distribution of the proceeds, when the sale of the realty, with the dwelling or structure upon it, fails to satisfy all the liens. It is conceded that the vendor is entitled to a superior lien on the land, and the mode of ascertaining his interest, when both the land and structure upon it has been sold, is to require.
The liens of the mechanics were as follows, viz: Fisher, Leaf & Co., $140; Frank Crowfoot, $100; Davis & Gage, .$100; making in all $340. The vendor was then entitled to all the purchase money except $34o. Fisher, Leaf & Co. have received their money, and are not complaining, and the only question to be determined is the manner in which the liens of Crowfoot and Davis & Gage are to be disposed ■of, amounting to $100 each. Payton and wife had executed to them their notes for materials furnished, but no record ■evidence of their intention to retain a lien was made, as required by law, in the county court clerk’s office. The .appellee, Korb, had taken a mortgage from Payton and wife •on the lot after the house had been constructed, without
The vendor maintains that if such is the case, his lien 'being superior to the mortgagee’s, and there not being a sum ¡sufficient to discharge his lien, that it should be paid to him. 'This is a novel question. Two of these parties, the vendor ¡and the mortgagee, have liens on the whole property, and the mechanics only on the house, or the fund representing it. If the mechanics’ lien is lost, so far as the mortga.gee is concerned, when he attempts to enforce his lien, it must be held subordinate to that of the vendor, and we see ¡no escape from the conclusion that, as between the vendor .and the mortgagee, the fund must be held to belong to the 'vendor. The mortgagee cannot be substituted to the rights •of the mechanics, because the latter failed to give him notice of the existence of their lien, its only effect being to enable the mortgagee to enforce his lien as against the property in -preference to the mechanic; and when he attempts this, he --meets with the superior lien of the vendor, that must neces
The want of notice to the mortgagee of the mechanics” lien did not make his claim more sacred than that of the vendor, the former having full notice of the vendor’s lien at the time his mortgage was executed; and if the mechanic,, by his omission to take proper steps to secure his lien, has-, postponed his claim to that of the mortgagee, it cannot have the effect of advancing the lien of the latter to a position where it becomes superior to the lien for the purchase money. The case must be decided as if the lien of the-mechanic had been withdrawn, and the mortgagee left. to» litigate with the vendor; and the lien of the latter having priority, and the whole sum for which the property sold being insufficient to pay it, the lien of the mechanic, so far as it has been made!* subordinate to that of the mortgagee,, must go to the vendor of the land. There is no privity of contract between the mechanic and the mortgagee, nor has-, the latter any equitable assignment or transfer of the mechanics’ claim or his lien; and the latter having lost his preference by postponing his lien to that of the mortgagee, the-contest is between the mortgagee and the vendor as to who» is entitled to the fund. The mortgagee is not substituted; to the lien of the mechanic, and certainly has not as high an equity as that of the vendor, the latter having the prior lien and the prior equity. To the extent, therefore, that the-lien.of the mechanic has been made subordinate to that of the mortgagee, the vendor becomes entitled.
The judgment is reversed as to the Building Association, •and affirmed as to Davis & Gage. Cause remanded for' further proceedings.