228 N.W. 777 | Mich. | 1930
These consolidated suits involve foreclosure of two mechanics' liens. The lien of Louis Cohen was sustained and foreclosure decreed, from which Jacob G. Judson and the surety on his bond for discharge of lien (3 Comp. Laws 1915, § 14802) have appealed. Foreclosure of lien of William Retty was refused, and he has appealed.
Lui Pinte and Florea Pinte owned a lot on which they wanted to build a house. By absolute deed they conveyed the lot to Will Investment Company, a corporation, of which Frank Will was an officer and acting manager. The corporation agreed in writing with the Pintes to build a house on the lot, and, when it was completed, to give them back a land contract with value of the lot credited as down payment. The corporation was given the right to mortgage the property, which it did. The house was built, but, laborers and material not being paid, a number of mechanics' liens were filed, the largest being that *232 of the Judson Lumber Company. Mr. Judson, it is said, attempted composition. He secured a deed of the property from the Will Investment Company, the discharge of certain liens, and he bonded off, as has been said, the two liens first above mentioned. The Pintes entered into a contract to purchase the property from Judson.
The Will Investment Company, with respect to building the house, was the owner; it had absolute deed and record title; it had right to mortgage which it exercised; it had right to the full possession which it enjoyed. No one here can dispute it. Judson gave the lien discharge bond as owner because of his deed from Will Investment Company. The Pintes accepted land contract from Judson. The two liens claimants before us ask decree against Judson and his surety. Judson and his surety may defend here against the "establishment of any unjust claim."Grace Harbor Lumber Co. v. Ortman,
Contention of the lienors that, upon taking deed of the property from Will Investment Company, Judson assumed and agreed to pay the lienors, may be answered by saying that the letter of the corporation to Judson which accompanied the deed is expressly to the contrary. Moreover, these suits are not to recover on any such undertaking, but to foreclose the liens and to recover against the bond discharging them.
Retty Lien: The statement of lien and the bill to enforce it state that the lienor furnished labor and materials under contract with the owner, Will Investment Company. No sworn statement was made and given the owner as required by 3 Comp. Laws 1915, § 14799. This is fatal to the lien. Netting Co. v.Touscany,
Decree affirmed. Cohen will have costs against Judson and his surety, and they will have costs against Retty.
WIEST, C.J., and BUTZEL, POTTER, SHARPE, FEAD, and NORTH, JJ., concurred. McDONALD, J., took no part in this decision.