Bowling v. Garrett

• Decision Date: 11 June 1892
• Parties: THOMAS B. BOWLING, as Sheriff of Wyandotte County, et al., v. ROBERT GARRETT et al
• Court: Kansas Supreme Court

31 P. 135

49 Kan. 504

THOMAS B. BOWLING, as Sheriff of Wyandotte County, et al., v. ROBERT GARRETT et al

Supreme Court of Kansas

June 11, 1892

Error from Wyandotte District Court.

ACTION by Garrett and another against Bowling, as sheriff, and the Badger Lumber Company, to enjoin defendants from selling certain land on execution. Judgment for plaintiffs, at the December term, 1889. The defendants bring the case to this court. The facts are stated in the opinion.

Judgment affirmed.

Hutchings & Keplinger, for plaintiffs in error:

The whole controversy resolves itself into this: Can a defendant by agreement with an outside party, deprive a plaintiff of his statutory right to have a judgment rendered during the term become a lien as of the first day of the term upon real estate owned by said defendant at the beginning of the term? The question is not whether a lien, conceded to be held by plaintiff, has priority over the interest which we freely concede to be held by defendants. If we have a lien, our right to proceed with the sale would not be questioned; but the question is whether we have any lien at all notwithstanding the statutory provision referred to.

Equity has no concern with this controversy. At the beginning of the term Cox owned the land, and he owed plaintiff in error, and he was also indebted to defendants in error. He was under precisely the same legal and moral obligation to pay the one as the other. As between these creditors, equity looked on with indifference. Whatever priority of right either may have to an appropriation of the property owned by Cox at the beginning of the term depends exclusively upon the statute. Both parties are relying upon a strict statutory right, and equity will leave the parties where the statute leaves them. The priority of right which defendants had by virtue of their lien at the beginning of the term was the creature of the statute. The right to the lien "did not exist at common law. The statute which creates it provides for the manner of its enforcement. The liability and the remedy were created by the same statute. This being so, the remedy provided is exclusive of all others. Where the provision for the liability is coupled with a provision for a special remedy that remedy alone must be employed." Pollard v. Bailey 20 Wall. 526. See, also, Burke v. Wheat, 22 Kan. 722; Phil. Mech. Liens (2d ed.), §§ 2a, 489, 490; Jenny v. Buel, 55 Ala. 408. We invoke in our behalf the principles enunciated in these decisions.

Unless these authorities are overruled or ignored, they are conclusive of this controversy. The same act which gave defendants a lien provided a remedy for its enforcement. That remedy was a proceeding in court. Unless the lien culminates in the judgment of the particular court named in the act, and is followed by a judicial sale, confirmed by such court, the lien becomes as though it had never existed. An agreement between the lien claimant and the owner of the premises, made outside of court, cannot be made to take the place of the foreclosure proceedings provided for in the statute.

The language of the statute allowing plaintiff's lien to attach as of the first day of the term is absolute. The judiciary cannot interpolate exceptions. On the 5th of June it was wholly uncertain what course would be taken by plaintiff. It was certain, however, that if plaintiff should get a judgment during that term, the lien of such judgment would attach to the land as of June 5. One who has an action pending at the beginning of the term has precisely the same footing with respect to a lien as has the material man who has furnished material but has not yet filed his statement. Whoever thereafter acquires an interest is chargeable with notice of and is bound by a lien which attaches as of a prior date. A mechanic's lien "is a limited privilege, arising in positive enactment. . . . Any essential departure from its directions will be fatal to those who attempt to enforce it. In this strict adherence to the requirement of the statute there is deemed to be no inequity, as the party claims to fasten an unusual right upon the land of another, with priority over other creditors." Phil. Mech. Liens (2d ed.), § 11. See, also, 50 N.Y. 362; Phil. Mech. Liens, §§ 1, 15; 2 Jones, Liens, §§ 1184, 1555.

The statute of Kansas provides that the lien shall be enforced by civil action in the district court, "which action shall be brought within one year" from the completion of the building. Code, § 633. That the year has expired and no such action has been prosecuted, is shown by the petition. An examination of the nature of a mechanic's lien in Kansas will show that this is fatal to the lien. The act requires that a verified statement of the claim to a lien shall be filed within four months after the completion of the building, and that a suit to foreclose shall be brought within one year after such completion. One step is as necessary as the other, and a failure to take one is as fatal as a failure to take the other. The lien itself is not created by filing the statement; it exists before, and is created at the time the material is furnished; the statement is filed not to create but to preserve the lien. Weaver v. Sells, 10 Kan. 619; 2 Jones, Liens, § 1389.

That the failure to bring suit to foreclose the lien by judicial proceedings, as required by the statute, works a forfeiture of the lien, is well settled by the authorities. Wagar v. Briscoe, 38 Mich. 587. See, also, Benton v. Wickwire, 54 N.Y. 266; 2 Jones, Liens, § 1184; Cole v. Colby, 57 N.H. 100; Burbank v. Wright, 47 N.W. 162; Phil. Mech. Liens, § 2; Emerson v. Grainey, 7 So. Rep. 526; 2 Jones, Liens, §§ 1261, 1564, note; Pom. Eq., § 1269.

That the lien lapses by failure to bring a suit within the time required by statute, is shown by a great many decisions. 2 Jones, Liens, § 1564; 1 Phil. Liens, §§ 266, 322.

The provision of the statute requiring suit to be brought within a limited time is for the protection of other lien holders, and they may take advantage of any failure to comply with it. Phil. Liens, §§ 332, 333, 334, and cases cited in notes; Crow v. Nagle, 86 Ill. 437; Rice v. Simpson, 30 Kan. 28; Dumphy v. Riddle, 86 Ill. 22; Perry v. Conroy, 22 Kan. 716.

Such interest as defendants have does not antedate the conveyance to them, while the lien of plaintiff's judgment dates back two days earlier; from which it follows, not only that plaintiff has a lien, but that such lien antedates any interest which defendants have by virtue of their deed.

Our right to proceed does not depend upon the priority of our lien, but upon its existence. We have the right to proceed with a sale and purchase the property. Even though it were true that if we had done so it would still be subject to the payment of the amount due on the defunct lien, we would have the right to pay off such claim, in which event we would own the land. Should we do so now we would be in no way benefited, because defendants would still own the land. Unless the conveyance be held to have the effect of an absolute foreclosure in a proceeding to which we were parties, we have the right to proceed with the sale.

McGrew & Watson, for defendants in error:

The levy was made by the sheriff upon the property in controversy without regard to any incumbrances thereon or interest therein of these defendants. Such levy was clearly contrary to chapter 177, Laws of 1887, and the sale attempted to be made thereunder was properly enjoined at the instance of defendants in error, for the reason that if said defendants occupy the worst possible position claimed for them by opposing counsel, they are nevertheless entitled to be substituted or subrogated to the mortgagee's rights in and to the mortgage security, for any and all amounts by them paid in reduction of the indebtedness secured by the mortgages upon the property antedating the pretended judgment lien of the Badger Lumber Company. Muir v. Berkshire, 52 Ind. 149; Ellsworth v. Lockwood, 42 N.Y. 89. Cobb v. Dwyer, 69 Me. 494, 498; Yaple v. Stephens, 36 Kan. 688; 1 Jones, Mortgages, § 874, et seq.; Boone, Mortgages, §§ 135, 136; Pom. Eq. Jur., § 1212; Crippen v. Chappel, 35 Kan. 495, and cases therein cited.

The controlling inquiry in this case, as we view it, is, did such a merger of defendants' mechanic's lien and the legal title to the property take place as to render the lien and interest of defendants subordinate to the intervening judgment lien? A solution of this question involves numerous principles of law, which we shall discuss as briefly and as nearly in their order as possible.

Counsel for plaintiffs in error contend that equity has no jurisdiction over or concerning mechanics' liens, and will not recognize or entertain them in any equitable proceeding. A careful reading of the brief and of the authorities cited therein discloses the fact that counsel have confounded the enforcement or foreclosure proceedings in mechanics' lien cases with equitable jurisdiction. That mechanics' liens can be enforced or foreclosed only by strict adherence to the statutory method of procedure relating thereto, we readily concede, and the authorities cited go to that extent and no further; but equity frequently takes cognizance of mechanics' liens, and protects them when once in existence; the enforcement of them is not a part of their existence, but, on the contrary, the statute prescribes what is necessary to do to create a mechanic's lien and the time when it becomes a valid and existing one and a vested right, and independently thereof prescribes the method of its enforcement, by an action brought in conformity with the rules prescribed by the code, as to which code all distinctions between law and equity have been expressly abolished. ...