Shearer v. Wilder

The opinion of the court was delivered by Johnston, J. : The questions argued in this case must be determined from the findings of fact, as neither party has preserved the evidence upon which they are based. The facts stated by the trial court show that Wilder owned an addition to the city of Topeka and was desirous of erecting houses in the same. He authorized the building of two houses upon his lots, azid indicated the general design, elevations and plans upon which to build, and also stipulated the approximate cost of the same. McCann, who was acting with and for him, agreed to purchase [260] the lots upon which the houses were built, upon certain conditions with which he never complied. Houses of the character specified by Wilder were built at about one-half of the estimated cost, but McCann never obtained any title to the lots, and if he ever acquired any interest by reason of his proposed purchase he formally surrendered and transferred it to Wilder. The houses were erected upon ground which then belonged to Wilder, and the title is in him now, and these houses have become a part of his real estate, but he has paid nothing to anyone, and those who have contributed their labor and materials to enhance the value of .his property have received nothing. In his behalf it is contended that McCann acquired no interest in the land to which the liens could attach, and that if he ever possessed any interest in the property it had never ripened into an equitable title, and that he had no authority to subject the property to a lien. Much reliance is placed on Lumber Co. v. Schweiter, 45 Kan. 207, but the rule of that case hardly applies to the facts in this-one. There they sought to establish liens against the proposed purchaser of the property, while here- they are seeking to establish liens against the owner. In that case the proposed purchaser had specifically stipulated that, until a conveyance of the property was made and a back mortgage given, the legal and equitable title should remain in the original owner, and until the conveyances were made the proposed purchaser could not subject the property to any liens. In that case the main purpose of the contract was the sale of lots, while here the principal purpose appears to be to procure the building of houses upon the addition of Wilder. Instead of stipulating that the proposed purchaser should not subject the property to any liens, as in the Scbweiter case, Wilder [261] appears to have contemplated that liens might be' created against it, as he stipulates that no conveyance will be made by him to McCann nor any money loaned thereon until it is free and clear of any mechanics’ or other liens or any liabilities whatever for labor or material. He gave McCann possession of the lots with authority to procure the erection of houses thereon, and he certainly foresaw that work and materials would be expended upon his lots, and from the contract it seems that in carrying out his purpose he supposed that liens would be created against the property. The authority which he conferred in effect made McCann his representative or agent in obtaining the erection of the houses. The authority did not go to the extent of creating a personal obligation against Wilder, but under the circumstances we think it did give McCann power to subject the property of Wilder to liens for the improvements which he arranged should be made upon the same. It will be observed that he selected the plans and elevations, agreed upon the specifications, which were reduced to writing, and fixed the limit of cost of the buildings. He agreed to pay money toward the cost of the houses, and while they did not cost nearly as much as he contemplated they would, just such houses as he specified and agreed should be built were built. The trial court specifically finds that the houses were built in accordance with the plans, elevations and written specifications agreed upon by Wilder. It is true he expected the houses would cost from $2,500 to $3,000 each, while houses of the kind and quality designated by him were actually built for less than $1,000 each. Wilder visited the premises once during the construction of the houses, and also after they were completed. He objected to them, claiming they were not built ac [262] cording to the plans, nor of proper dimensions; but the findings of the court clearly overrule his objections where they state that the houses were built in pursuance of the written specifications and in accordance with the plans and elevations. No objection was then made as to the quality of the houses, nor that the cost price had not been marked sufficiently high. We think a clear implication arises from the contract of the parties that McCann was authorized and empowered to procure the labor and materials necessary to the construction of the houses erected on Wilder’s lots. AYilder was not to convey the lots until after the houses were built. To comply -with his agreement, it was necessary for McCann to procure the erection of such houses as Wilder stipulated and specified should be built. The lienors furnished the material and labor which were used in carrying out Wilder’s purpose. He never parted with the legal or equitable title to the land upon which the houses were erected, and now, after they have been erected in accordance with the plans and specifications, and after McCann has surrendered all his rights under the contract to AVilder, it would be a great injustice to allow Wilder to hold the property enhanced in value by the labor and material of the lienors without paying for such labor and material. We think that, by his contract, Wilder has subjected the lots in their improved condition to the liens of the claimants. No reason is seen for allowing Wilder a lien for the purchase-money of property which was never conveyed and for which no consideration was paid. The conditions of the contract of purchase were never complied with, and if McCann ever acquired any interest in the property it is a little more than a shadow. It is a question of grave doubt whether it [263] amounted to such an interest as could be sold or subjected to liens. However much it may have been, it was relinquished to Wilder, who has had throughout the full legal and equitable title to the lots. McCann has, therefore, no claim against Wilder for the lots, and Wilder in turn has no lien upon his own lots by reason of the unperformed contract and the relinquished rights of either party under it. As tending to sustain the views stated, we cite Manufacturing Co. v. Kountze, 30 Neb. 719 ; Henderson v. Connelly, 123 Ill. 98; Hill v. Gill, 40 Minn. 441; O’Leary v. Roe, 45 Mo. App. 567 ; Lumber Co. v. Mosher, 88 Wis. 672 ; Hickey v. Collom, 47 Minn. 565. Under the facts, the judgment and decree of the court should be modified by denying Wilder any lien upon the premises, and the plaintiffs in error should be adjudged to have first liens upon the premises, all equal in point of priority. The judgment so modified will be affirmed. All the Justices concurring.