56 Kan. 252 | Kan. | 1896
The opinion of the court was delivered by
: The questions argued in this case must be determined from the findings of fact, as neither party has preserved the evidence upon which they are based. The facts stated by the trial court show that Wilder owned an addition to the city of Topeka and was desirous of erecting houses in the same. He authorized the building of two houses upon his lots, azid indicated the general design, elevations and plans upon which to build, and also stipulated the approximate cost of the same. McCann, who was acting with and for him, agreed to purchase
We think a clear implication arises from the contract of the parties that McCann was authorized and empowered to procure the labor and materials necessary to the construction of the houses erected on Wilder’s lots. AYilder was not to convey the lots until after the houses were built. To comply -with his agreement, it was necessary for McCann to procure the erection of such houses as Wilder stipulated and specified should be built. The lienors furnished the material and labor which were used in carrying out Wilder’s purpose. He never parted with the legal or equitable title to the land upon which the houses were erected, and now, after they have been erected in accordance with the plans and specifications, and after McCann has surrendered all his rights under the contract to AVilder, it would be a great injustice to allow Wilder to hold the property enhanced in value by the labor and material of the lienors without paying for such labor and material. We think that, by his contract, Wilder has subjected the lots in their improved condition to the liens of the claimants. No reason is seen for allowing Wilder a lien for the purchase-money of property which was never conveyed and for which no consideration was paid. The conditions of the contract of purchase were never complied with, and if McCann ever acquired any interest in the property it is a little more than a shadow. It is a question of grave doubt whether it
Under the facts, the judgment and decree of the court should be modified by denying Wilder any lien upon the premises, and the plaintiffs in error should be adjudged to have first liens upon the premises, all equal in point of priority. The judgment so modified will be affirmed.