58 Kan. 166 | Kan. | 1897
On February 2, 1888, John Norton and W. E. Goulding & Son entered into the following contract:
“ This is to certify that William E. Goulding & Son have this day purchased lots numbered 449 , 451 and 453 on Sumner Street, in John Norton's Second Addition, for the sum of nine hundred dollars, on the following terms :
“ The said W. E. Goulding & Son are to erect a good two-story house worth not less than two thousand dollars on the said lots, beginning within three months and completing the same within six months*167 from this date, and at the completion of said house free from mechanics’ liens or material-men, we agree to execute a general warranty deed for said lots, and make a loan to said Goulding & Son (in addition to the purchase money) of six hundred dollars, and accept a note and mortgage on said property for the full amount of said loan and purchase money, not to exceed fifteen hundred dollars. The terms of said loan are to be for three years and draw eight per cént. interest, interest payable semi-annually from this date. And the said Goulding & Son are to furnish paid-up insurance policy for the amount of two thousand dollars, for the term of five years. In case the said Goulding & Son do not commence the erection of said house within the time stated, then, this nine hundred dollars becomes due and payable or they forfeit their rights under this contract, and the same is null and void, as time is of the essence of this contract. Hated, Topeka, Kansas, February 2, 1888. Approved : Bartholomew & Co., agents for John Norton.
W. E. Goulding & Son.”
On the trial of the case which grew out of the making of this contract, it was admitted: “That on or about Mayl, 1888, the written contract of February 2, 1888, was modified by parol so that the Gouldings were to erect two houses upon said premises and that eleven hundred dollars was to be furnished to be put into the buildings, instead of six hundred dollars as contemplated in said contract of February 2.” The Gouldings erected the houses in accordance with the above agreement and its parol modification. The plaintiff in error, who is a dealer in building material, began on June 21, 1888, to furnish to the Gouldings the lumber necessary for the erection of the houses contracted for between themselves and Norton. On July 18, 1888, the lots were conveyed as per agreement; and at the same time a couple of mortgages, each for one thousand dollars, were executed on the property by the Gouldings. These mortgages,
These are all the relevant facts ; and the question arising thereon is one of priority of lien between the mortgage owner and Thomas, the owner of the mechanics’ and material-men’s judgments. That question is not hard to determine.
Although payment of the purchase money to Norton out of the proceeds of the mortgages is to be imputed to Bartholomew, and although it is known that he paid some on the building liens out of such proceeds, it is not claimed that such facts entitle his assignee to be subrogated, by virtue of the mortgages, to the liens thus discharged. The assignee could not be so subrogated unless Bartholomew, the assignor, could ; and he could claim no such right from the mere fact of having made a loan of money to pay off prior liens. Sheldon on Subrogation, § § 8-19. What relation Bartholomew sustained to the various parties to this transaction, is not disclosed. There is nothing, however, which shows him in any other character than that of an ordinary lender of money on mortgage security. But if it could be said that he stood in the place of Norton, the case would, nevertheless, appear to be within the principle of Shearer v. Wilder (56 Kan. 252), in which the interest of the lot owner was
The priorities of' lien are with the plaintiff in error to the extent of the claims of himself and other material-men and mechanics ; and, upon a retrial of the case, should one be necessary, the court below will so adjudge.
The judgment of the court below is reversed, and the cause remanded for proceedings in. accordance with this opinion.