National Lumber Co. v. Bowman

77 Iowa 706 | Iowa | 1889

Granger, J.

It will be observed that the contract by which Givens held the premises provided “ that said tenant shall have the right to erect such improvements thereon as he may deem proper, and at the termination of the lease the landlord shall have the right to buy such improvements at their appraised value.” There is no dispute but that the lien would attach as against Givens. The inquiries in the case are as to defendant Bowman’s rights in the improvements, and we notice the different arguments in the order presented.

1. mechanic's erai security to defeat. I. It is urged that plaintiff cannot avail itself of the lien claimed, because it has taken security which, linfler Code, section 2129, would defeat the lien. That section, in substance, is that a party shall not be entitled to the benefit of such a lien who has collateral security on the contract. The security referred to in this case is that of Bowman himself. In the suit plaintiff sought to establish that Bowman was a purchaser of the lumber, and make him personally liable, which fact Bowman denied, and before the final submission of the cause that claim was dismissed as to him without prejudice. The fact of security or personal liability is not admitted or established in the case. The argument, without the fact to sustain it, is entirely without utility.

2. error in premises^ actual notice, II. The agreed statement shows that in filing the statement for mechanic’s lien the section of land was by mistake inserted as “twenty-nine” instead °f “twenty-three,” and it is insisted that j-j; amounted to no statement of a lien as to the premises in question. The filing of a statement was not necessary to charge defendant Givens. He had full notice without, and the admitted facts and testimony show that defendant Bowman had as much knowledge of the material facts as Givens. Bowman had constructive knowledge of the claim as filed. He knew Givens to be his tenant, and making the improvement on his premises, and must have known of the error, and that plaintiff claimed the lien on these particular improvements. An admission in the case is that plaintiff at all times claimed a personal liability against Bowman for the lumber, which was denied. Noel v. Temple, 12 Iowa, 276; Kidd v. Wilson, 23 Iowa, 464; Code, sec. 2133.

3. land. mechanic's mongagef61 priority. III. The lien, as established by the district court, attaches only to certain improvements, and not to the land. Appellant claims that his landlord’s üen is prior thereto, and also that his.chat- ^ mortgage on the improvements, made subsequent to the improvements, but before the commencement of this proceeding, must take priority. We think subdivision 4 of section 2135 of the Revised Code is conclusive of the question. It in terms provides that for things furnished or work done, including those for repairs, additions and betterments, the lien shall attach to the buildings, erections or improvements for which they were furnished or done, in preference to any prior lien, or encumbrance, or mortgage on the land, which seems to contemplate that, as to improvements created by the materials or labor, the lien thereon shall be prior to all others. Section 2133 in terms provides that a failure to file the statement within the time prescribed, shall not defeat the lien, except as to purchasers and encumbrancers without notice. In this case Bowman had notice, which must be conclusive both as to the landlord’s lien created by lease, and the mortgage afterwards given. This view finds support in the case of Nordyke & Marmon Co. v. Woolen-Mills Co., 53 Iowa, 521. We find no error in the proceeding of the district court, and its judgment is

Affirmed.