49 Minn. 469 | Minn. | 1892
Two former appeals in this action are reported in 42 Minn. 427, (44 N. W. Rep. 313,) sub nom. Ness v. Wood, and 45 Minn. 424, (48 N. W. Rep. 10.) On the first appeal it was decided that the claim of the plaintiff was chargeable as a mechanic’s lien upon the interest of this appellant, Edward E. Davidson, in the land devised. On the second appeal, it appearing that the executors had then exercised the power to sell conferred upon them by the will of the testator, it was considered that by the sale and conveyance the land was transferred to the purchaser free from any such lien, for the reason that the devisees could not incumber the estate so as to obstruct or defeat the execution of the power. The effect of the two decisions was that the estate of the appellant in the land was chargeable with the mechanic’s lien, but that such estate was liable to be divested by the exercise of the power of sale conferred by the will, in which case he would become entitled under the will to the proceeds of the sale in lieu of the land itself; that his estate in the land was so divested, with the effect also to discharge the lien from the land.
After the remanding of the case to the district court, a supplemental complaint was allowed and filed, setting up the fact of the sale of the land, and that the appellant had received a portion of the proceeds of the sale, and it was prayed that the appellant be adjudged to hold such proceeds, to the extent of the plaintiff’s lien claim, in trust for its satisfaction; and after a retrial of the case, upon issues, joined, equitable relief of that nature was granted. This is an appeal from the judgment.
The power of the court to enforce payment of the plaintiff’s claim out of the proceeds of the sale of the land is denied by the appellant upon three grounds, it being contended (1) that the plaintiff’s right
Without reviewing the ground covered by our former decisions, the correctness of which is not questioned, we enter upon the consideration of the case with the premise that the appellant had an estate in the land devised, although it was liable to be divested by the execution of the power of sale, in which case the proceeds of the land were to go to him as a substitute for the land itself. The further premise is to be accepted that the appellant’s estate, while it existed, was actually charged with the plaintiff’s mechanic’s lien. The lien had been created under a contract which he had executed. In contemplation of law, the improvement went on, and the lien was imposed with his consent. His estate was as effectually charged as
The mechanic’s lien having attached to the real estate while it was vested in the appellant, and having been discharged only by a sale, which was, in effect, a conversion of the property thus •changed into money, — a substitution of the proceeds of the sale of the land for the land itself, — for the benefit of the person who •owned that estate, it is cpnsidered that the substituted fund in the
The third point of the appellant, founded on the doctrine of equitable conversion, is not tenable. The power to sell conferred by the will was, as we hold, clearly discretionary in the donees of the power, and no imperative duty was imposed on them. Hence there was
Judgment affirmed.
(Opinion published 52 N. W. Rep. 46.)