Biddle Concrete Co. v. Same

• Decision Date: 18 April 1922
• Docket Number: No. 4436,No. 4437,No. 4435,4435,4436,4437
• Citation: 90 W.Va. 760
• Court: West Virginia Supreme Court
• Parties: Biddle Concrete Co. v. Edward P. McOlvin et al.Same v. Jacobs Realty Co. et al. (two cases).

90 W.Va. 760

Biddle Concrete Co.

v.Edward P. McOlvin et al.

Same

v.Jacobs Realty Co. et al. (two cases).

No. 4435

No. 4436

No. 4437

Supreme Court of Appeals of West Virginia.

Submitted April 11, 1922.

Decided April 18, 1922.

1. Vendor and Purchaser Vendor Retaining Title Until Final Payment Holds in Trust for Purchaser.

Where the owner of a vacant lot enters into a written agreement with another whereby the owner sells and the other buys such lot, the owner to execute a deed therefor upon full payment being made, the purchaser becomes the equitable owner and the vendor holds the legal title to the land in trust for the purchaser and as security for the payment of the purchase price. (p. 763).

2. Same Vendor Holds Title in Trust for Purchaser, Where Latter Enters into Possession and Makes Valuable Improvements Under Oral Contract.

Such is also the case where there is a verbal contract of sale and purchase and the vendee enters into possession and makes such valuable improvements as will entitle him to specific performance. (p. 763).

3. Mechanics' Liens Purchaser is Deemed "Oioner" Within Meaning of Mechanics Lien Statute.

In either of such cases, the vendee is deemed to be the owner of the land within the meaning of the Mechanics' Lien Law, chapter 6, Acts 1917, and one, who furnishes materials for the construction of a building on the land under a contract with the owner or his authorized agent, is entitled to a lien on such owner's interest in the land and building, for the materials so furnished, upon compliance with the statutory requirements as to filing his claim of lien for record. (p. 764).

4. Same Party Furnishing Materials Under Contract with Owner Need Not Give Owner Notice, But Must File Lien "Within Statutory Period.

Where one furnishes materials that are used in the construction of a building, under a contract with the owner or his authorized agent, to perfect his lien for material he is not required to give notice to the owner of his claim of lien, but he must record his notice of lien within the statutory period of 90 days from the date he ceases to furnish materials to the owner under the contract. (p. 764).

Appeal from Circuit Court, Harrison County.

Action by the Biddle Concrete Company against Edward P. McOlvin and others, and two actions by the Biddle Concrete Company against the Jacobs Realty Company and others. Judgments for plaintiff, and defendants appeal.

Affirmed.

Carter & Sheets, for appellants.

Robert R. Wilson, for appellee Biddle Concrete Co.

Robinson & Robinson, for appellee Bumgardner.

Cornelius C. Davis, for appellee Cole.

Felix 0. Sutton, for appellee West End Plumbing Co.

Meredith, Judge:

These three cases involve the validity of certain mechanics' liens on three separate lots and the buildings thereon. They were heard together in the court below and also here. As the same point of law is raised in each case, a single opinion will suffice for all.

McOlvin Case.

In this case, Martin Petrel, in February, 1919, bought from C. T. Stealey, Lot No. 98 in the Hartland Addition to Clarksburg, the deed to be made upon payment of the purchase money. About March 1st, Petrel took possession and began constructing a dwelling house thereon. He bought most of his materials from Glen Elk Lumber Company and the plaintiff. After the house was well under construction, he sold the property to McOlvin. The exact terms of sale are not shown; a deed was made by Stealey to McOlvin, dated May 31st, which he recorded July 29th. McOlvin paid Stealey the purchase money for the lot; his tenant took possession of the house about July 1st. The house was then substantially completed, though some of plaintiff's material for which it claims a lien was furnished as late as July 24th. Petrel paid no part of the purchase money on the lot and made no formal assignment of his contract to McOlvin, but verbally directed Stealey to make the deed to McOlvin. McOlvin appeals from a decree allowing plaintiff's lien for materials furnished for the construction of the house on the theory that Petrel was a "contractor" for the construction of the house and not the "owner" of the lot on which the house stands. As already stated, the terms of McOlvin's purchase are not clear, but that is his fault. He borrowed $2600 from a loan company, secured by deed of trust upon the property, and part of this, if not all, was used in paying claims for labor and materials. He claims he then had no knowledge of plaintiff's demand. Of course, that makes no difference. He was bound to know. Petrel swears that he was merely a contractor, though for his share he was paid by McOlvin some $350 or $400; that he did not own the lot, never paid anything on it. He says he contracted to build the house for McOlvin; he may have contracted with McOlvin to finish the house for him, but he certainly did not make any contract with him until some time in May, and then the house was well on the way to completion. When he started the work, he did not know that McOlvin would buy it, nor is there any evidence that he expected to sell it to him. He started building it for purposes of sale generally, and not to sell to any definite person.

Plaintiff's notice of lien was recorded October 15th, and within 90 days from the date of furnishing the last materials. Not knowing the exact relations between Stealey, Petrel and McOlvin, it filed its notice of lien against all of them. If McOlvin were the purchaser of the lot from Stealey, in the first instance, and Petrel merely a contractor to construct the house for McOlvin, then, under the mechanic's lien statute, the plaintiff should have served a notice of its claim of lien upon McOlvin, as owner of the property, within 60 days from the date of its furnishing the last item of materials, and in that event, its claim in this suit would be invalid, because no notice was served on McOlvin. But as already stated, McOlvin was not the original purchaser from Stealey. Stealey sold the lot to Petrel by written contract. Petrel was to pay the purchase money, but by his sale to McOlvin he got him to step into his shoes. McOlvin, under such circumstances, could not accept the benefits without assuming the burdens. By the contract of purchase with Stealey, Petrel became the equitable owner of the lot. Defendant complains that the written contract is not in the record. No matter whether the contract was written or verbal, Petrel took possession and made such valuable improvements that he would have been entitled to specific performance under the contract, even if it had not been in writing. Besides, there was no controversy about that. Stealey made the deed according to the contract, except at Petrel's request, he made it to McOlvin instead of to the original purchaser. Petrel was the equitable owner of the lot and his interest therein became liable for any mechanic's or material-men's liens, for which Petrel was responsible to the same extent as if he had the legal title to the lot, under a deed from Stealey, with a vendor's lien reserved in the deed securing Stealey's purchase money. The case cited by counsel for McOlvin, Charleston Lumber & Manufacturing Company v. Brockmyer, 18 W. Va. 586, instead of denying this rule, directly affirms it. If Stealey had conveyed the lot to McOlvin, reserving a lien to secure his purchase money, he would have had the first lien, but the mechanic's lien claims against Petrel for work and material, would nevertheless have been valid claims against the property, to be paid out of it, after the satisfaction of Stealey's vendor's lien. The holder of the equitable title to land is an owner of the land within the meaning of our mechanic's lien statute. Charleston Lumber & Manufacturing Com- pany v. Brockmyer, 18 W. Va. 586. See also: Jacksonville Nat'l Bank v. Williams, 38 Fla. 305, 20 So. Rep. 931; Inter-State Bldg. etc. Ass'n v. Ayers, 71 I11. App. 529; Monroe v. West, 12 la. 119, 79 A. D. 524; King v. Smith, 42 Minn. 286, 44...