41 Minn. 408 | Minn. | 1889
January 14, 1887, the defendant Emma Beeden, as the owner of certain real property, entered into a contract with the ■defendants Schunstrom and Ephraim Johnson, whereby she agreed to sell and convey the same to them. But a small sum was paid at the date of the contract, the balance of the purchase price falling due ■June 1st following. As a part of this contract it was agreed that the purchasers should erect three dwelling-houses upon the premises, each ■of specified dimensions, by said 1st day of June, which dwellings were to be the absolute property of said vendor, as additional security for the payment of the purchase price, and to become forfeited, with .all other improvements, if the contract of sale was not strictly complied with by the vendees. The plaintiffs in this action furnished materials to the latter, which were used in the erection of these three •dwellings, and they now demand that the value of the same be adjudged a lien upon the real estate and its appurtenances as against ■defendant Beeden, the purchasing defendants having failed to comply with the terms of their contract, and having forfeited and surrendered ■all rights thereunder. It will be noticed by comparison that the facts herein do not differ materially from those presented to this court and considered quite recently, in Hill v. Gill, 40 Minn. 441, (42 N. W. Rep. 294.) The relief demanded was granted below, and an appeal is taken from the judgment, three distinct errors being assigned, of which we need consider but one. This is based upon an alleged defect in the affidavit for the lien, and it is apparent, we think, that the
That part of the affidavit which is criticised and declared insufficient is as follows, viz.: “That the annexed is a true and correct account of the labor performed and materials furnished by said Mc-Glauflin & Burfening to and for Olof Schunstrom and Ephraim Johnson, at Minneapolis in said county; and the prices thereof set forth in the account hereto annexed are just and reasonable, and the same is unpaid. That said labor was performed and material was furnished for said Olof Schunstrom and Ephraim Johnson at the time in said account mentioned, under and by virtue of a contract between McGlauflin & Burfening, affiant, and said Olof Schunstrom and Ephraim Johnson, who held a contract for a deed from Emma A. Beeden, owner of the lots described herein, and for constructing three certain dwelling-houses, located on the premises hereinafter described. That said material was equally apportioned between said three dwelling-houses. And the affiant further makes oath and says that the said Emma A. Beeden was, at the time said contract was entered into and said labor was performed and material was furnished, the legal owner of said dwellings and lots described herein, and that said Olof Schunstrom and Ephraim Johnson were the equitable owners thereof, and that said buildings are situate upon certain lots of land owned by said Emma A. Beeden, legal owner, and said Olof Schunstrom and Ephraim Johnson, equitable owners, described as follows, to wit: Lots, thirteen (13) and fourteen, (14,) in block four, (4,) in Wolverton’s addition to Minneapolis, according to the plat thereof on file and of record in the office of thp register of deeds in and for said Hennepin county, Minnesota. And this affiant, Eugene 0. McGlauflin, of and for said firm, claims a lien on said premises.”
It is firmly settled by the decisions of this court that, as the filing: of the affidavit or verified statement operates as the creation of the lien, and also as a notice to all of its existence, it must show facts-sufficient to fulfil the statutory requirements for a lien; that the record must disclose a valid lien, prima facie; that the statement must,, upon its face, show a right upon the part of the claimant to impose-a charge upon the property; and, in brief, that the lien affidavit must