Bassett v. Menage

Collins, J. This was an action to foreclose a mechanic’s lien, several of the answering defendants being lien claimants. The facts were that defendant Kommers had contracted for the purchase of lot three (3) in block fifty-one (51) A, St. Louis Park Center, Hennepin county, according to a plat thereof on file and of record in the office of the register of deeds of said county, while defendant Menage was the owner of a hotel building, some two miles distant, which he desired to sell. Negotiations were carried on between these parties, so that when Kommers procured a deed to the lot, April 13, 1891, a trade was closed immediately, whereby the latter agreed to give $2,-500 for the building, removed and reconstructed upon his lot, and he thereupon executed and delivered to Menage Iris note for that sum, secured by a mortgage upon the lot. The mortgage was recorded on April 15th, and in point of time antedates any of the lien claims. It seems that a bargain had previously been made by and between Menage and defendant Nilson whereby the latter was to take down, remove, and rebuild the hotel for the sum of $1,500, furnishing all materials, and performing all necessary labor. A written contract to this effect, specifying in detail just what was to be done by Nil-son, was executed by the latter and Menage on April 13th. Armed with this contract, Nilson purchased the materials involved in these lien claims, that he might carry out the same. The building was removed and reconstructed upon Kommers’ lot, and Menage, it is admitted, paid to Nilson, and, upon his order, to those who worked upon the job, and to those who furnished materials, the full amount of the contract price, $1,500. The court below subordinated the mortgage to the liens, and this is the principal question on appeal. 1. Menage did not agree with either Kommers or Nilson to furnish $1,500 to be used in the removal and reconstruction of the building, as argued by his counsel. If he had made this agreement, and no other, the case could not well be distinguished from that of Hill v. Aldrich, 48 Minn. 73, (50 N. W. Rep. 1020,) and his mortgage would have been a bona fide mortgage, having, under the statute, precedence over the liens. But Menage’s contract with Kommers was to remove the building onto the lot, and there reconstruct it in a certain maimer, furnishing all materials and labor himself. This contract [125] was rendered certain and unmistakable in all of its terms by means of the written agreement made between Menage and Nilson; so that the case stands precisely as if Kommers had purchased the building from a third party, had then contracted with Menage to take it down, remove, and completely rebuild it for the sum of $1,500, giving to the latter a mortgage as security for the payment of that sum, (the mortgage being prior to the lien claims in point of time,) and Menage had then subcontracted with Nilson for the performance of his contract, exactly as he did in fact. Under such circumstances, there could be no question as to where, in order of satisfaction out of the property, the mortgage Would be placed, and no doubt that the claims of those who had furnished materials or performed labor, that Nilson might complete his contract with Menage, would have precedence over his mortgage. By means of the agreements made with Kommers and Nilson, the defendant Menage has placed himself where the former can hold him responsible for the omissions and delinquencies of the latter, and where his rights as a mortgagee must be subordinated to the claims of those from whom materials were purchased by his subcontractor, Nilson, for use in the building. 2. We are unable to discover any merit in the contention of appellant’s counsel that the court erred in permitting defendant Nil-son to testify that he had received the lumber mentioned in plaintiffs’ bill or exhibit, over the only objection made, namely, that it was not the best evidence, or that there was error in finding that .plaintiffs had furnished material as claimed. . The fact that Nilson had received the lumber could be established by parol, and that was exactly the object of the question. That Nilson bought the lumber for use in rebuilding the hotel, and that nearly all of it was actually used for that purpose, was clearly shown in more than one way. 3. The assignments of error numbered six (6,) seven (7,) and eight. (8) are disposed of by referring to Finlayson v. Crooks, 47 Minn. 74, (49 N. W. Rep. 398, 645,) in which it was held that a mortgagee may be made a party to an action of this kind, and his rights adjudicated, whenever it might be done in an action to foreclose the mortgage. It would be difficult to pass upon his rights at all without determining them as between the mortgagor and himself, or without adjusting all [126] differences between them, especially such as have grown out of and are connected with the lien claims. Again, the premises are to be sold for the purpose of satisfying the liens, and may bring more than enough for the purpose, in which case the surplus would go to the mortgagee; or, possibly, the surplus would be more than sufficient to satisfy and discharge the mortgage liens, leaving a balance for the mortgagor or his successor in interest; and, in any event, the premises would be subject to redemption by the mortgagee, by a subsequent incumbrancer, by the owner, or by a judgment creditor of the latter; all of which indicates the propriety and necessity of having every equity which may exist in favor of the mortgagor fully determined, and the rights of the mortgagee completely adjudicated, in proceedings to ascertain and determine the rights of claimants under the lien laws of the state. As was said in the ease just alluded to, ihe statute furnishes a very inadequate and incomplete remedy to lien claimants, unless the rights of incumbrancers and all others •claiming, to have acquired an. interest in the premises can be fully .and finally adjudicated; and the aptness of this remark could not be better demonstrated than by the facts now under consideration. The ■trial court committed no error when ascertaining the amount actually due upon the mortgage, and directing that if a balance remained from the sale after satisfying the liens, it be applied upon the mortgage •debt. 4. The lien statement of defendant Lime Association described the property on which a lien was claimed as “Lot 3, in block 51, St. Louis Park addition to Minneapolis, Minnesota, according to a plat "thereof on file and of record in the office of the register of deeds of said Hennepin county.” It was found by the court below that there was no plat on file or of record in said office, and no place in said ■county known as “St. Louis Park Addition to Minneapolis;” that there were but two plats in said office on which appeared the name ■of St. Louis Park, one being a .plat bearing that exact name, on which there was no block 51 or 51 A, and the other being a plat of 'St! Louis Park Center. On this plat there was no block 51, but there were blocks 51 A and 51 B. The latter block was not subdivided into lots, while 51 A was subdivided; one of the lots being numbered [127] 3, and owned by defendant Kommers. The description was sufficient, under the statute. The lien statement is a notice merely of the claim of the material man or mechanic, and while, in substance, it must comply with the requirements of the statute, the same fullness or precision is not required as in the case of a conveyance or judgment. If there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. See Tulloch v. Rogers, 52 Minn. 114, (53 N W. Rep. 1063,) and cases there cited. Again, the statute under which this action was brought (Laws 1889, ch. 200, § 9) provides that the validity of the lien shall not be affected by any inaccuracy in the statement relating to the property to be charged with it, if such property can be reasonably recognized from the description given. Order affirmed. (Opinion published 53 N. W. Rep. 1064.)