50 Ind. App. 387 | Ind. Ct. App. | 1912
— Appellant brought this action against appellee Whybrew to foreclose a materialman’s lien. Joseph Musselman and Anna Musselman, his wife, were made parties to the action to answer as to any interest which they might claim in the property in question and are the active appellees in this appeal. They also filed a cross-complaint, asking that title to the property be quieted in them.
The cause was tried by the court, which rendered a general finding, and found for appellant as against appellee Whybrew, and rendered personal judgment against said Whybrew, but on the cross-complaint, found that appellees Musselman and Musselman were the owners of the property in question, free of any claim of appellant under the materialman’s lien sued on, and rendered judgment for appellees. Appellant accordingly moved to modify the court’s finding and judgment so as to entitle appellant to the sale of the building erected on the real estate described in the complaint. This motion and the motion for a new trial were overruled and appellant now relies on and urges error in each of such rulings.
The material facts in this case are as follows: On April 6, 1903, appellees Musselman and Musselman, then owners by entireties of the real estate described in the complaint,
This contract was placed of record.
Whybrew took full possession of the real estate under the contract, and continued in possession thereof until February 24, 1905. In the fall of 1903 he built a frame dwelling house on said land, and used in its construction the materials sold to him by appellant. On January 2, 1904, within the time allowed by law, appellant filed notice of his intention to hold a lien on the real estate and improvements for the value of the materials furnished. Aside from the initial payment of $100, Whybrew made no payments in accordance with the terms of the contract, and on February 24, 1905, moved off of the property, and surrendered possession to the Musselmans. During his occupancy of the property he received in rents and profits therefrom, a sum considerably larger than that which he paid on the contract.
The motion to modify, on which the error is predicated, is not merely a motion to modify the judgment, but is a motion
Whether the independent question of error on account of a refusal of the lower court to modify its judgment on proper motion is before this court, is open to doubt, but the motion is lengthy, and a discussion of this phase of the case is unimportant, in view of the conclusion we have reached on the merits of the case.
The third paragraph of the complaint, proceeding on the theory of appellant’s right to a lien only on the building erected on appellees’ premises, presented the alleged error relied on at the point of its origin in the lower court. After sustaining the demurrer to this paragraph, the court, if right in this ruling, properly overruled the motion to modify the finding and judgment, the purpose of such motion being to have the judgment and decree modified so as to give to appellant a lien on said building and an order of sale of the building to satisfy the same.
While the question sought to be presented by the motion to modify might have been more properly presented by the other rulings, yet we do not understand that' a waiver of
The question we are asked to determine is, Does a materialman who furnishes materials used in a building erected on real estate by a vendee in possession thereof, under a contract of purchase, thereby obtain a lien on such biálding to the extent of the material furnished and used therein, as against the legal owner and vendor of such real estate, after a surrender to him of the possession and rights of such vendee under his contract of purchase, when such material was furnished under a contract with such vendee alone, such vendee having made such contract in his own behalf and not as the agent of the vendor?
The answer to this question depends on the construction to be given to our mechanics’ lien statutes. These sections, and the parts of the same, here involved, are as follows: §8295 Burns 1908, Acts 1899 p. 569. “That contractors, subcontractors, mechanics, journeymen, laborers and all persons performing labor or furnishing material or machinery for the erection, altering, repairing or removing any house, mill, * * * may have a lien separately or jointly upon the house, mill, * * * which they may have erected, altered, repaired or removed, or for which they may have furnished material or machinery of any description, and on the interest of the owner of the lot or parcel of land on which it stands or with which it is connected to the extent of the value of any labor done, material furnished, or either * * §8296 Burns 1908, Acts 1889 p. 259. “The entire land upon which any such building, erection or other improvement is situated, including that portion not covered therewith, shall be subject to lien to the extent of all the right,- title and interest owned therein by the owner thereof, for whose immediate use or benefit such labor was done or material furnished; and where the owner has only a leasehold interest, or the land is incumbered by mortgage,
We can hardly say that we have found a decision of the Supreme Court or this court exactly decisive of the question here involved, and there is much confusion in the decisions of other states on the question, some of these courts having reversed themselves one or more times on the question, notably the courts of Missouri and Massachusetts. We cite some of the cases where this question has been presented and discussed. Galveston Exhibition Assn. v. Perkins (1891), 80 Tex. 62, 15 S. W. 633; Wagar v. Briscoe (1878), 38 Mich. 587; Jossman v. Rice (1899), 121 Mich. 270, 80 N. W. 25,
For a summary of the holding of the court in some of the eases, supra, see note to case of Zabriskie v. Greater Am. Expo. Co. (1903), 62 L. R. A. 369.
The fact that "the purchaser in possession under a contract of purchase made improvements or repairs with the knowledge and consent of the vendor, did not estop the latter to assert its prior title. Something more than mere inactive consent is necessary in order that a lien may be acquired against the owner of property.” People’s Sav., etc., Assn. v. Spears, supra. See, also, Neeley v. Searight, supra.
In discussing §8296, supra, and its application to a contract similar to that here involved, this court in the case of Davis v. Elliott (1893), 7 Ind. App. 246, 248, 34 N. E. 591, said: ‘ ‘ Counsel for appellants, however, insist that by this statute the law has been changed, and that they are entitled to a lien against the buildings, although not against the land. They urge that they can see no reason why the legislature should give the mechanic a lien on the buildings as against a prior mortgagee or a lessor by an ordinary lease, and not as against the vendor by executory contract. While this proposition might well be answered in the affirmative, still the rights of parties are to be determined not by what the legislature might well have done, but by what it has actually done. It is argued that the term ‘leasehold’, as used in this statute, ‘should be so construed by this court as to include eases like the one in question, construing the word to have a broad enough significance to cover any ease where the party was in lawful possession of
These authorities sustain the ruling of the court below on appellant’s motion to modify the judgment.
Appellant next insists that the decision of the court was contrary to law and not sustained by the evidence. What we have said on the other branch of the case would prevent a reversal of the judgment on either of these grounds.
Judgment affirmed.
Note. — Reported, in 98 N. E. 450. See, also, under (1) 2 Cyc. 1014; (3) 27 Cyc. 18; (4) 27 Cyc. 82; (5) 27 Cyc. 20; (6, 7) 27 Cyc. 59, 60. For a discussion of mechanics’ liens on buildings or improvements as distinct from the land on which it is located, see 2 Ann. Cas. 689. As to the existence and extent of mechanics’ liens at common law, see 35 Am. Rep. 362. As to the estate of lessee covered by a mechanic’s lien, see 45 Am. Dec. 678.