Big Three Lumber Co. v. Curtis

Holden, J., delivered the opinion of the court. This is a suit to enforce a mechanic’s lien on several houses for material furnished and labor done in their eréction. The question involved is whether the mechanic’s lien is valid and superior as against the title of the purchaser at a foreclosure sale under a deed of trust given on the land, and duly recorded, prior to the erection of the buildings by the then owner of the land, and without the consent of the mortgagee. In the case before us the land upon which the buildings were erected was sold by appellee Curtis to Mr. Cotton, and a deed of trust was executed by Cotton to Curtis to secure the purchase money. Cotton then sold the land to Shelton, who assumed to pay the purchase-money notes. Upon failure by Shelton to pay the purchase money, and after this suit was filed, the deed of trust was foreclosed, [81] and appellee, the original vendor, bought the land at the sale. In the meantime, before foreclosure of the trust deed, Shelton, while owner, had these buildings erected on the land by the appellant lumber company, and paid part of the price for their erection, but there remained a balance of about eight hundred dollars still due the appellant for labor and material used in erecting the buildings. This suit was then filed to enforce the mechanic’s lien against the buildings for the balance due thereon. The lower court finally allowed judgment against Shelton for the amount of the balance due, but refused an enforcement of the lien against the land or the buildings, and from this judgment the lumber company appeals. Thus it appears that at the time these buildings were erected the appellee, Curtis, had a duly recorded deed of trust upon the land to secure the balance of its purchase price. The houses were built by the appellant lumber company under contract with Shelton, who was appellee Curtis’ subvendee, and who Avas then the owner and in possession of the place; and the mortgagee Curtis did not consent to the erection of the buildings. A decision of the question involves the consideration of sections 8058, 3060, and 3069, Code of 1908 (sections 2418, 2420, and 2429, Hemingway’s Code), Avhich provide a mechanic’s lien and the method and extent of enforcement. We shall not set out the different statutes, nor discuss them in detail, but will briefly give our conclusions as to their meaning and applicability in the case before us. In the first place we shall eliminate from consideration the said section 3060, Code of 1906 (section 2420, Hemingway’s Code), because it has no application here, for the reason that it is not a case Avhere the erection of the house Avas “at the instance of a tenant,'guardian, or other person not the owner of the land,” but it is a case where the OAvner of the land contracted for the erection of the houses. We construe section 3058, Code of 1906 (section 2418, Hemingway’s Code), to mean the mechanic’s lien as to [82] buildings erected is effective as against prior incumbrances upon the land, but not as to subsequent purchasers or incumbrances without notice. Therefore, when read in connection with section 3069, Code of 1906 (section 2429, Hemingway’s Code), we think the mechanic’s lien is superior to the prior incumbrance so far as the houses alone are concerned. The appellee purchaser at the foreclosure sale secured no greater right than that given by the deed of trust. A careful reading of section 3069, Code of 1906 (section 2429, Hemingway’s Code), will clearly reveal that where the judgment is for the sale of the buildings alone, which have been erected on the land subsequently to the prior incumbrances, the purchaser at the mechanic’s lien sale will acquire the buildings free from the prior incumbrance; and he may with reasonable dispatch remove such buildings from the land. This does not seem to be true where the building is merely repaired, or where the lien is against the land; but in such cases the lien is subject to the prior incumbrance. The history of the mechanic’s lien statutes, together with the apparent purpose of them when read together, convinces us that it was intended a prior incumbrancer of land should not be injured in his security by a subsequent mechanic’s lien for buildings erected thereon without his consent, but that the mechanic or materialman might enforce his lien against the buildings alone, and not the land, and remove them with reasonable dispatch, which removal would not impair the original security of the prior incumbrancer. The point is made here that the appellee, Curtis, is entitled to the benefit of the amount paid by his subvendee to the appellant lumber company on the purchase price of the buildings. This contention might be correct if it were not for the phraseology of the statute. However, when the buildings are sold to satisfy the mechanic’s lien the appellee owner of the land may bid the amount necessary to satisfy the mechanic’s lien, and in that way he will re [83] ceive the benefit of the amount already paid on the buildings by his vendee. He would become the sole and complete owner of the buildings by purchase at the sale, or by paying off the mechanic’s lien. In view of the conclusions reached above we think the lower court erred in refusing to enforce the mechanic’s lien against the buildings .alone for the balance due in their erection. Therefore the judgment of the lower court is reversed, and judgment will be entered here for appellant. Reversed and judgment here for appellant. Reversed.