50 Minn. 272 | Minn. | 1892
This may be termed the companion case of that of the same plaintiffs against Shepard and others, ante, p. 268, (52 N. W. Rep. 894,) just decided, to the statement of facts in which, as far as it goes, reference may be made for the facts in this case.
This action was brought to enforce a lien for labor and material performed and furnished to the contractor, Stoddard, for the erection of the “Little” house. The defendants Esther B. Little and the North Side Building & Loan Association were mortgagees of the premises. The other defendants, Frazer & Shepard and Smith & Co., were lien claimants for material also furnished to Stoddard, — the former for the house, and the latter for both the house and the barn. As the building and loan association took no appeal, and is not made a party to this appeal, the correctness of the decision of the trial court as to the rank or position of the lien of its mortgage is not before us, and cannot be considered. The answer of Smith & Co., and the evidence in support of their claims, is substantially the same as in the Shepard Case, and what was said there is equally applicable here. There is the same failure to show what part or proportion of the material furnished for the barn entered into the construction of that part of it situated on the “Little” lot.
Appellants’ counsel rests the claim of priority for the mortgage mainly on the ground that as appears, or at least as they offered to prove, it was given for the purchase money of the lot. Under the facts, we do not see that this, even if true, is at all material. What counsel has in mind, and all that the cases cited by him hold, is that where the interest of a vendee, in possession under an execu-tory contract of sale, has become subject to a lien for material or labor furnished or performed for him for the construction of a building thereon, and subsequently the vendor, in performance of the ex-ecutory contract, executes a conveyance to the vendee, and at the same time takes back a mortgage for the unpaid purchase money, the mechanic’s lien will not displace or take precedence.of the mortgage, which is but a continuation in another form of the vendor’s lien. But in the present case Mrs. Little’s mortgage, in point of time, in fact antedated the liens of the respondents. Hence the only question is whether, notwithstanding that mortgage was first in time, the liens of the material men should be given precedence, because at the time they attached the mortgage had not been recorded. We have approached this question with a desire, in the in
But even if the recording act could be held to apply to mechanics’ liens, the facts of this ease would not bring the respondents within the protection of its provisions — First, because their claims for liens were not filed until after the recording of Mrs. Little’s mortgage; and second, because there is neither evidence nor finding that the respondents did not have notice of the mortgage when they furnished the material for the buildings. ■ The lien law is equally defective in not making any provision for such cases. Had the statute contained the provisions, found in many of the lien laws of other states, to the effect that mechanics’ liens shall be preferred to any mortgage or other incumbrance, of which the lienholder had no notice, and which was unrecorded at the time such liens attached, all difficulty would have been avoided. But our statute contains no such provision. It merely provides that the claim of the laborer or material man shall be a lien “on the right, title, and interest of the owner in the land.” There is no chance for giving respondents’ liens a preference, under Laws 1889, eh. 200, § 5, for that section expressly excepts bona fide prior mortgagees. Under this state of the law, we see no way by which the decision of the trial court can be sustained giving the respondents’ liens a preference over the Little mortgage. Of course, there may be cases where the holder of the unrecorded mortgage might be estopped by his conduct from asserting it as against lien
Inasmuch as the case was evidently tried and decided upon a wrong theory of the law, we shall merely order a new trial of the issues between respondents and Esther B. Little, instead of directing judgment in her favor upon the present findings.
3. The court below held that plaintiffs’ lien was superior, and the liens of the other respondents inferior, to the mortgage of the building and loan association, and ordered two sales of the property,— one subject to the lien of that mortgage, and the other free of all incumbrances, including that mortgage. This is assigned as error. As the building and loan association is not a party to this appeal, of course nothing can be done that would affect its rights under the decision of the trial court; but inasmuch as in any event there has to be a sale of the entire property free of the lien of the mortgage, its rights will not be affected by a modification of the order of th6 court directing two sales. Two sales of the property are wholly unnecessary, and will only lead to confusion worse confounded. There should be but one sale, and that of the entire property, and the proceeds distributed among all lienholders, including the building and loan association, according to their priority.
For the reason already suggested, the correctness of the decision of the district court as to order of priority of respondents’ liens, either as between themselves or as to the building and loan
Order reversed, and new trial ordered as to the second claim of Smith & Co., (material for the barn,) and also as to the issues between the respondents and the appellant Esther B. Little.