Phelps & Bigelow Windmill Co. v. Baker

Opinion by Strang, C.: Action on two promissory notes, and to foreclose a lien on real estate. October 17, 1889, the case was tried by the court, a jury being waived, which made the following findings of fact and conclusions of law: “1. On the 14th day of March, 1887, and prior thereto, the defendant M. H. • Baker was the legal and equitable owner of the following-described lands in Elk county, Kansas, to wit: The northwest quarter of the southwest quarter of section 17, and the north half of the northeast quarter of section 18, and the southeast quarter of section 7, and the southwest quarter of section 8, all being in township 29 south, of range 12 east; that on said 14th day of March, 1887, the' — 437 — defendant M. H. Baker contracted with the plaintiff to put in and upon said above-described lands certain improvements, a windmill and attachments therefor, and do certain labor in and about putting in said windmill on said lands, and furnishing the material and machinery therefor; that in pursuance of said contract and agreement the plaintiff, the Phelps & Bigelow Windmill Company, a corporation, furnished the 'material, machinery, and fixtures, and performed the labor in and erected a windmill on the lands above described, and fully completed the same on the 18th day of April, 1887. The defendant M. H. Baker executed and delivered to the plaintiff, as part consideration for such improvement made by the plaintiff as aforesaid, the two promissory notes described in plaintiff’s petition, and the said notes are due and unpaid. “2. Thereafter, on the 1st of June, 1887, the defendant Baker and wife conveyed the lands aforesaid to the defendant A. T. Bush, which deed was duly recorded in the office of the register of deeds in Elk county, Kansas, on the 29th day of June, 1887. “3. On the 5th day.of July, 1887, the plaintiff filed its lien in the office of the clerk of the district court of Elk county, Kansas, a true copy of which is attached to the plaintiff’s petition; and that said lien was filed within three months from the furnishing of said material, machinery and fixtures and improvements, and performing the necessary labor in erecting the windmill upon the lands above described, by plaintiff, for defendant Baker. “4. The court further finds, that said material, machinery, and fixtures, and the labor done and performed by the plaintiff in the erection and completion of said windmill, is not such improvements as is contemplated and provided for by the mechanic’s lien laws of the state of Kansas, and, therefore, form no lien on said lands, and that by reason thereof the defendant A. T. Bush took said lands free from all claims; to which last finding the plaintiff at the time excepted and excepts. “ 5. The court further finds, that the defendants and each of them have been served with summons as provided for by law in the state of Kansas, and that there is due the plaintiff from the defendant M. H. Baker the sum of $356.15 on the notes set out, and that said notes bear interest, at' the rate of 10 per cent., from maturity until paid. The court further finds, that the notary public before whom the plaintiff at — 438 — tempted to verify his statement for the mechanic’s lien failed to add to his official signature the date of the expiration of his commission as such notary public; that for said reason the aforesaid attempted mechanic’s lien ’is void as to A. T. Bush. [To which finding the plaintiff excepts.] “It is, therefore, considered, ordered and adjudged by the court, that the plaintiff, the Phelps & Bigelow Windmill Co., have and recover of and from the said defendant M. H. Baker the sum of $356.15, and that the judgment draw 10 per cent, interest from date; and it is further ordered and adjudged by the court, that the defendant A. T. Bush recover his costs herein, taxed at $22.65; to which further finding of fact and judgment of the court the plaintiff at the time excepted and excepts.” Upon the above findings and conclusions, judgment was rendered in favor of the plaintiff against Baker for the amount of the notes. But the court refused a judgment foreclosing the lien, and gave judgment for A. T. Bush, owner of the land, for his costs. Motion for new trial was overruled, and the case brought up,for review. The first matter discussed by the defendant in error in his brief is the objection to the consideration of the case by this court, for the reason that all the parties in the case in the court below are not made parties in this court. The plaintiff in its petition alleged that W. C. Newcomb and A. L. Bush claimed some interest in the land described in the petition, the extent and character of which was unknown, but which it was alleged was inferior to the rights of the plaintiff therein. Neither of such defendants answered, nor in any way appeared in the case in the court below. Having been properly served and not appearing, it is presumed that the court found that they had no interest in the land upon which the plaintiff claimed a lien, and this presumption is sustained by the court’s conclusion of law that “A. T. Bush took the lands free from all claims.” If the said defendants were found to have no interest in the lands they are not necessary parties here, and there is no objection to the consideration of the case because they are not parties in this court. (National Bank v. Ridenour, 46 Kas. 707, 718; 27 Pac. Rep. 150.) — 439 — Two questions on the merits of the case challenge the attention of the court here. The improvement for which a lien was claimed in this case was made while § 630 of the code, ¶ 4447 of the Compiled Laws of 1885, was in force. The language of said section, so far as material in this case, reads as follows: “Any mechanic, or other person, who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under contract with the husband or wife of such owner, perform labor or furnish material for erecting, altering or repairing any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attached to any such building or improvements — shall have a lien,” etc. Is the plaintiff entitled under this section to a lien upon the land upon which it was erected, for furnishing the machinery and other material and erecting a windmill for use on said land in raising water for stock and other farm purposes? We think an improvement of the kind for which the lien is claimed in this case is within the statute. It certainly is an improvement erected upon the lands, and as useful and valuable as many other improvements, such as fences for restraining stock, corn cribs for storage of corn, and granaries for the safe-keeping of grain, which are admittedly within the statute. Windmills are sometimes placed upon the top of some of the farm buildings, but are more generally placed upon a derrick, or tower, to which they are fastened, the derrick, or tower, at the same time being securely bolted to posts that are let into the ground to a depth sufficient to hold firmly in place the tower and windmill, so that the tower and mill are as firmly attached to the soil as a corn house, granary or other building erected on posts let into the ground. It is also an improvement that adds largely to the value of the land, by enabling the owner thereof to secure and distribute a supply of water for stock, thus adding to the value of the land for grazing purposes. The principle upon which a lien is given — 440 — for improvements upon land is that it adds to the value thereof. The plaintiff erected this improvement upon the land while it was owned by the defendant Baker, who after-wards sold the premises to Bush. Is there any doubt but that the mill passed to Bush as a part of the realty when the land was conveyed to him, and without any reference thereto in the descriptive part of the deed? We think not. The supreme court of Nebraska, under a statute quite like ours, held that the windmill, with tauk, pump, etc., “constitutes an appurtenance,” and was thus within the Nebraska statute. See, also, the case of Lumber Co. v. Water Co., 48 Kas. 182, 187, and cases there cited; 29 Pac. Rep. 476. In the absence of any agreement that the mill and other necessary material employed in its erection shall remain personal property when erected upon the land and attached thereto, it becomes an improvement or appurtenance, within the meaning of our statute, for which a lien may be had thereon if the proper steps are taken in time to secure it. The court below found as a fact that the notary public before whom the affidavit vei’ifying the lien was made failed to state after his official signature the time when his commission would expire, and upon such finding the court held, as a matter of law, the lien was void. We do not think such omission on on the part of the notary renders the lien void. The statute requiring such addition on part of the notary does not attempt to avoid the affidavit taken by the notary on account of such omission. It simply subjects the notary to a penalty therefor. The omitted matter constitutes no part of the affidavit, nor of the jurat thereto. It is a statutory requirement to be observed by the notary for the purpose of making the instrument show that the notary taking the affidavit is still in commission and with power to do so. The cases cited from the Missouri reports by the defendant in error do not seem to be applicable. Our statute is broader than the Missouri statute, and the cases cited mostly refer to improvements upon leasehold property. — 441 — We think the court erred in its conclusions of law, and recommend that the judgment thereof be reversed. By the Court: It is so ordered. All the Justices concurring.