Townsend v. White

Granger, J. I. The parties aré not in dispute but that the vendor’® lien would take priority in the absence of particular facts to change the rule. The claim of plaintiff is that, before lie furnished materials, he had an agreement with the defendants White that he should furnish the material for the buildings, and that his lien should be prior to any'interest of theirs, and that he furnished the materials in pursuance of such agreement. The parties are in dispute as to this proposition of fact. We conclude from the evidence that such was 479 the understanding. It is probably true that the word “lien” was not used, but one of the Whites was the first to see and talk with plaintiff about furnishing the materials. They had sold the land without any payment, and were desirous of having the improvements made, and the talk was that plaintiff should furnish the materials, and should be first paid. This was clearly the understanding and that is not denied. We have no doubt that plaintiff understood, and that defendants White did understand, or art least should have understood, that the land should stand first as a security for plaintiff’s claim. The language must be viewed in the light of tbe surroundings and the reasons for making the preference as to payment. It is not important to elaborate the point. It is one of faot, and we are not in doubt as to it, as the evidence is presented. 1 II. It is, however, said that the evidence to show the fact of such agreement is incompetent, because it is oral, and the promise is to answer for the debt of another. We can hardly see how. The transaction does not seem to u's to ‘bear any relation to the statute of frauds. There was no debt when the agreement was made, nor was there any agreement to pay a debt. It is also said the evidence was incompetent, because the contract was -for the transfer of an interest in real estate. What interest? The defendants had their vendor’s lien, and they have it yet. They, by their agreement, permitted another lien, if it should attach, to be prior to it. No conceivable interest in the land was transferred. The sale of the land by defendants and the agreement with plaintiff were so near in point of time that they may be said to be simultaneous. In no sense can there be said to have been any transfer of an interest in real estate. The interests or liens are preserved just as they attached under the agreement. 480 2 III. It .appears that the title to the land is in the wife, and the contract for the lumber was made with her husband, and, as we understand, because of the situation of the title, the district court established an equitable, instead of a mechanic’s lien. The defendants' White do not question, if a lien is to be established, that it should be a mechanic’s lien; and the defendants Haver are in 'default, and have at no time questioned the right to such a lien. This situation makes it unnecessary to give reason for our conclusion, and we simply state it, that a mechanic’s lien should have been established in favor of plaintiff. On plaintiff’s appeal the judgment is reversed. On defendant’s appeal it is aeeirmed.