Stockwell v. Carpenter

27 Iowa 119 | Iowa | 1869

Dillon, Ch. J.

i mbcbmio’s ■ priority.on t>miamg3. The point argued by the appellant tha-f plaintiff was not entitled to a lien because he took collateral security, was not, g0 far ag sjj0WI1 ’by the rocor¿j; made in the court below. Nor does the record show that the appellant there made the objection that the plaintiff had lost his lien because he did not file the same within ninety days from the date of the last item in his account.

Nor can we examine the question whether the evidence was sufficient to establish the contract between the plaintiff and Carpenter respecting the lumber. The jury have found by their verdict that such a contract was made, and there appears to have been no suggestion in the court below that this finding was not sustained by the testimony.

If there was no error in the form of the judgment entered on the verdict, the judgment below must be affirmed.

The appellant contended in the court below, as also in this court, that the plaintiff was not entitled to a lien even upon the shed, which would have priority over the lien of the appellant for his purchase-money.

The District Court held otherwise, and this is really the main question in the case. The exceptions to the instructions properly raise this point and require us to decide it.

Unless the rule is changed by statute the lien of the vendor for his purchase-money would have preference over that of the mechanic or material man.

Has our statute changed this rule ? This involves a construction of sections 1846, 1853, 1854 and 1855 of the Be vision.

The last section (1855) is as follows :

“ The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements, for which thejr were furnished, or the work was done, in preference to any prior lien, or incumbrance, or mortgage upon the land upon which said building, erections or improvements have been erected or put, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter.”

As to the land, the priority of the lien of the vendor is not disturbed by the statute (sections 1853, 1854); but as respects the “ buildings, erections and improvements ” for which the materials were furnished or work done, the statute is express that the lion of the mechanic shall attach thereto in preference to any prior lien on the land; that such lien may be enforced, and the building or other erection sold and removed.

We do not concur with the appellant’s counsel that section 1855 has sole reference to the case of buildings and improvements made by tenants as specified in the preceding section.

On the supposition that the construction given to the statute by the com*t below was correct, the appellant’s counsel has attacked its justice and its policy.

It is no pai’t of our duty to vindicate it. It is sufficient to remark that, as this statute was in force at the time the appellant sold the land to Carpenter, its constitutionality is undoubted.

2. — contract itemsnot sp0Clfy We are also of opinion that the court did not err in holding that it was not necessary, in order to entitle the plaintiff to a lien, “that every item fur-nished should be contemplated or specially named at the time of making the contract.”

3. wio oSf1” And it is also our opinion that Carpenter, being in possession under a subsisting contract of purchase, was an “owner or proprietor” within the meaning of sections 1846 and 1866 of the Revision, and hence could make a contract with the plaintiff such as is therein contemplated.

The judgment entered by the court on the verdict of the jury is in strict conformity with the section of the Revision (section 1868) relating to that subject.

This disposes of every point legitimately presented by the record.

Some of the prior cases in this court cited by the appellant arose under the former mechanics’ lien statute, and the others decide nothing inconsistent with the foregoing opinion.

The judgment below must be

Affirmed.