Bastien v. Barras
| Decision Date | 23 November 1900 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Sauter, J.
Action by Henry Bastien against Michael Barras and others. Judgment for plaintiff. Defendants appeal.
Affirmed.
Spencer & Sinkler, for appellants.
Plaintiff's mortgage was filed on the 24th day of April, 1897. The building located on the mortgaged land was commenced on the 9th day of December, 1896. The appellants, therefore, who furnished labor and material for the completion of the building, are superior in their liens to the mortgage. Turner v. St. John, 8 N.D. 245, 78 N.W. 380; Haxton Heater Co. v. Gordon, 2 N.D. 246, 50 N.W 708; Vilas v. McDonough Mfg. Co., 65 N.W. 488; Erdman v. Moore, 33 A. 958; Carew v Stubbs, 30 N.E. 219; Chapman v. Brewer, 62 N.W 320; 2 Jones on Liens, 1470; Milnor v. Norris, 13 Minn. 424; § 4793, Rev. Codes. A subsequent mortgagee is not a necessary party to forclose a prior mortgage. Kornegay v. Farmers' Steamboat Co., 12 S.E. 122; Williams v. Kerr, 18 S.E. 501, 9 Enc. Pl. & Prac 321; Carpenter v. Brenham, 40 Cal. 221. The only right which a subsequent purchaser has, not having been made a party to the foreclosure of a prior lien, is to redeem. Whitney v. Higgins, 10 Cal. 547; Gamble v. Voll, 15 Cal. 508; Gage v. Brewster, 31 N.Y. 217; Newcomb v. Dewey, 27 Ia. 381; 2 Jones on Liens, § 1579; 2 Jones on Mortgages, § 1395; Rogers v. Holyoke, 14 Minn. 158; Johnson v. Hosford, 10 N.E. 407; Denton v. Ontario Nat. Bank, 150 N.Y. 126; Wiltsie on Mortgage Foreclosure, § 61; Evans v. Tripp, 35 La. 371; Williams v. Chapman, 65 Am. Dec. 669; Owens v. Heidberder, 44 S.W. 1079; Demming Lumber Co. v. Savings Ass'n, 49 N.E. 28; American B. & T. Co. v. Lynch, 10 S.D. 410, 73 N.W. 908.
Gray & Casey, for respondent.
Because the record does not disclose that the notice and bond for appeal were served on defendants, Barras, Wentz and Murphy, the appeal should be dismissed. § 5606, Rev. Codes; 2 Enc. Pl. & Prac. 230, 236; Castle Dome M. & S. Co., 21 P. 746; De Armaz v. Jones, 34 P. 223; Gill v. Jones, 52 P. 78; Pacific Mut. Life Ins. Co. v. Fisher, 39 P. 759; Grays Harbor Co. v. Wotton, 43 P. 1095. Appellant cannot ask for a trial de novo without making the defendant, Barras, one of the persons most vitally interested, a respondent. Tyler v. Shea, 4 N.D. 382; Hamilton v. Blair, 31 P. 197. The notice of appeal describes an ordinary money judgment for $ 1,389, damages and costs, in favor of respondent, Bastien, and against appellants. Such a notice of appeal is insufficient to give this court jurisdiction of the judgment actually entered. 2 Enc. Pl. & Prac. 218; Ream v. Howard, 24 P. 913; Crawford v. West, 39 P. 218; Kellogg v. Smith, 10 Wis. 135. The appeal bond does not sufficiently describe the judgment appealed from to identify it with certainly, and the appeal should be dismissed. Smith v. Cheatham, 12 Tex. 37; Horton v. Bodine, 19 Tex. 280; Williams v. State, 26 Ala. 85; Messner v. Lewis, 17 Tex. 519. The undertaking on appeal in this action is not accompanied by the affidavit of the sureties to the effect that each surety is worth any sum whatever over and above his debts and liabilities in property within the state not exempt by law from execution. § 5622, Rev. Codes; McDonald v. Ellis, 36 P. 37; Northern Counties v. Hender, 41 P. 913; Tolerton v. Casperson, 7 S.D. 206, 63 N.W. 909. The assignments of error on plaintiff's part are insufficient. Brynjolfson v. Thingvalla, 8 N.D. 106; 2 Enc. Pl. & Prac. 442; Noyes v. Lane, 48 N.W. 322; Bem v. Bem, 4 S.D. 138, 55 N.W. 1102. Where a mechanic's lien has been foreclosed by appropriate proceedings against the owner of the premises alone, and it nowhere appears in the judgment when the lien attached to the premises, the judgment will operates as a lien upon the premises from the time it was docketed only as against the purchaser at sheriff's sale. Kendal v. McFarland, 4 Ore. 442; Reading v. Hopson, 90 Pa. 494; Meggs v. Bunting, 21 A. 588; Boysot on Mechanics' liens, § § 532, 672. The Cairncross and Davies lien claims are void because of the mingling in the lien claim of lienable and non-lienable articles. Williams v. Toledo Coal Co., 36 P. 159, 15 Am. & Eng. Enc. L. (1st Ed.) 142; Boysot on Mechanics' Liens, § 428. Where one sues for material furnished he cannot recover for labor performed. Eaton v. Maletesta, 28 P. 24.
Plaintiff prosecutes this action to foreclose a real estate mortgage executed by Michael Barras, one of the defendants herein, and, as an incident thereto, to have the lien of such mortgage declared paramount to the interests of the other defendants in the mortgaged premises. Barras does not answer. The remaining defendants answered separately, setting forth their respective interests, and ask that the same be adjudged superior to the lien of plaintiff's mortgage. It is admitted that the mortgage was executed as alleged, and that the notes secured thereby are unpaid. The sole controversy in the case is whether the mortgage constitutes a prior lien. The trial court found with plaintiff, and directed the entry of judgment in accordance with the prayer of his complaint. Defendants appeal from the judgment.
For the purpose of this appeal, appellants caused a statement of case to be settled, which embraced all of the evidence offered at the trial, and also a specification that they desired a retrial of the entire case in this court under the provisions of section 5630, Rev. Codes. So far, however, as their appeal relates to a retrial in this court under said section, it has been entirely abandoned. The evidence offered in the trial court has been wholly omitted from the record presented here and appellants do not now ask a trial de novo. They are satisfied with the findings of fact made by the trial court, but insist that such findings do not warrant the conclusions of law and the judgment of the District Court, wherein it was determined that plaintiff's mortgage was paramount. On the contrary, they contend that the findings of fact, as they stand, entitle them to a judgment declaring plaintiff's mortgage subject and subordinate to their respective interests in the premises. This presents the sole question in the case, and it arises fairly upon the statutory judgment roll. Do the findings of fact warrant the conclusion and judgment of the trial court? We are agreed that they do, and that the judgment of the trial court must accordingly be affirmed. The facts upon which the trial court based its conclusions, so far as pertinent on the question of priority, are these: Plaintiff's mortgage was executed and recorded on February 24, 1897. A building known as the "French College" was then in process of construction on the premises covered by such mortgage. The building was commenced on December 9, 1896, and was not completed until March 24, 1898. Three mechanics' liens were filed against the premises. They were filed approximately a year after plaintiff's mortgage was recorded,--the exact date not being material,--and were for labor and material furnished long subsequent to the recording of the mortgage. These several liens were foreclosed in actions wherein Michael Barras, the owner of the premises, was sole defendant; and judgments were obtained therein establishing such liens, and directing a sale of the premises to satisfy the same. Appellants are the purchasers at the sheriff's sale made pursuant to said judgments, and their interests in the mortgaged premises are represented by the sheriff's certificates issued on said sales. Neither in the foreclosure proceedings nor in the liens filed did the lien claimants claim liens on the premises anterior in time to the furnishing of the labor and material, which, as we have seen, was subsequent to the recording of plaintiff's mortgage; and the judgments entered, directing the sale of the premises, established the liens only as present liens as of date the judgment, and, in express language, barred only those who should thereafter acquire an interest in said premises from Barras. The most liberal construction of the foreclosure proceedings will not extend the lien established by the judgment prior to the furnishing of the labor and material. In these several foreclosures the lien claimants entirely ignored the fact that the building for which they had furnished labor and material had been in process of construction from December 9, 1896, and were content to claim and establish a lien merely from the date such labor and material were furnished. Under these facts, we think it is entirely clear that the interests of defendants in the premises are subordinate to the lien of the mortgage. They have just what they purchased at the sale, and no more, and that interest was what the lien claimants had to sell. To ascertain the extent of that interest, we must look to the judgments which determined it. They disclose that the liens, at most, did not antedate the furnishing of the labor and material, and were subsequent in time to the execution and recording of plaintiff's mortgage. Appellants' contention seems to be that, inasmuch as the building was under construction when plaintiff's mortgage was executed, it is postponed to mechanics' liens for labor and material thereafter furnished for the purpose of completing it. As a general statement of law, the proposition is correct. See Rev. Codes, § 4793; Heater Co. v. Gordon, 2 N.D. 246, 50 N.W. 708; Turner v. St. John, 8 N.D. 245, 78 N.W. 340. But it does not apply to the facts of this case as they exist. If this were an action between the mortgagee and...
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