Chappell v. Smith
| Decision Date | 15 May 1894 |
| Citation | 59 N.W. 110,40 Neb. 579 |
| Parties | CHAPPELL v. SMITH ET AL. |
| Court | Nebraska Supreme Court |
1. The failure of an account and its accompanying statement, filed to secure a mechanic's lien, to disclose affirmatively that such filing is within the requisite time to entitle to the lien claimed, operates to defeat the relation back of such lien as against liens in existence before the filing of such account.
2. A mortgage, from the date of being filed for record, takes priority of mechanics' liens for labor done or material furnished, when no part of such labor was done, and no part of such material was furnished, before such mortgage was filed. Henry & Coatsworth Co. v. Bond (Neb.) 55 N. W. 643, and Hoagland v. Lowe (Neb.) 58 N. W. 197, followed.
Appeal from district court, Sheridan county; Bartow, Judge.
Petition by James Chappell against William H. Smith, the Michigan Savings & Loan Association, and others to enforce a mechanic's lien. From the decree rendered, said savings and loan association appeals. Reversed.Albert W. Crites, for appellant.
T. S. Tripp, Spargur & Fisher, Thos. L. Redlon, R. M. Magee, D. B. Jenckes, and W. H. Fanning, for appellees.
On August 29, 1891, James Chappell, as plaintiff, filed his petition in the district court of Sheridan county, Neb., wherein were made defendants William H. Smith, Fanny A. Smith, Excelsior Lumber Company, Michigan Savings & Loan Association, Charles W. Raymond, Tobias J. Thompson, John Reid, Lyon & Boyd, A. L. Pense, Frank A. Fafek, George W. Churchill, Charles S. Bates, Ira Longcor, Spargur & Fisher, John D. Zernett & Co., and Robert McNair. In the petition it was alleged that William H. Smith was at the various times to which reference was made in the petition, and at the date of its filing still continued to be, the owner of lot 29, block 7, in the village of Hay Springs, and that Fanny A. Smith had at all times referred to in said petition a dower interest in said lot, for the reason that said Fanny A. Smith was the wife of William H. Smith. The plaintiff, by his petition, sought to have a mechanic's lien declared, decreed, and enforced in his favor superior to the rights of all the defendants as to the lot above referred to; and several of the defendants by way of cross petition sought like relief on claims of the same character as against the plaintiff and each codefendant. By the default of Fanny A. Smith, Tobias J. Thompson, Charles W. Raymond, George W. Churchill, and John D. Zernett & Co., there was ended the necessity of considering their rights or interests. By the decree the mechanics' liens were, so far as pertinent to our inquiry, declared of equal priority, each, however, being established as paramount to the rights of the Michigan Savings & Loan Association under its mortgage on said premises made by William H. Smith and his wife, Fanny A. Smith. This mortgage bore date September 1, 1890, was acknowledged September 9, 1890, and was duly filed for record October 27, 1890. There was found due the Michigan Savings & Loan Association the sum of $604.50, with 7 per centum per annum interest thereon from September 6, 1890. No one appeals from this finding, so that, for the purposes of this case, it may be assumed as correct. The savings and loan association, just mentioned, appealed from that part of the decree which subordinated the lien of the mortgage to each mechanic's lien established, and which adjudged that said association was liable for the amount of said established mechanics' liens. At the very threshold of our inquiries we observe that the money judgment against the Michigan Savings & Loan Association cannot be sustained, for there is no evidence whereby to substantiate the claim that this association was a party to the erection of a building on the premises described. It is true, it agreed to loan money to Smith, to be used for that purpose, but it in no sense was a promoter of his building scheme, within the lines laid down in Manufacturing Co. v. Kountze, 30 Neb. 719, 46 N. W. 1123;Millsap v. Ball, 30 Neb. 728, 46 N. W. 1125;Pickens v. Investment Co. (Neb.) 55 N. W. 947;Holmes v. Hutchins (Neb.) 57 N. W. 514; and Hoagland v. Lowe (filed during this term) 58 N. W. 197.
2. It was stipulated on the trial that on November 24, 1890, W. A. Chappell, as contractor of defendant Smith, filed the affidavit and account for a lien exhibited in the petition, upon which, at the time of the trial, there was due a balance of $765.38, and that said account and claim for a lien had been, by W. A. Chappell, assigned to plaintiff. The claim for a lien was in the form and filed as shown by the following excerpt from the brief submitted on plaintiff's behalf in this court:
“Mechanic's Lien. Filed Nov. 24th, 1890, at 7 a. m.
W. H. Smith, Dr., to W. A. Chappell.
+-----------------------------------------------------------------------------+
¦To material furnished and labor performed as per contract hereto ¦$1,100¦
¦attached marked ‘A,’ eleven hundred ¦00 ¦
+----------------------------------------------------------------------+------¦
¦To four days' work at three dollars per day ¦12 00 ¦
+----------------------------------------------------------------------+------¦
¦To furnishing material and laying of 2,108 feet of wall at 18 c. per ¦379 53¦
¦cubic foot ¦ ¦
+----------------------------------------------------------------------+------¦
¦ ¦$1,491¦
¦ ¦53 ¦
+----------------------------------------------------------------------+------¦
¦1890. By cash received ¦400 00¦
+----------------------------------------------------------------------+------¦
¦Balance due ¦$1,091¦
¦ ¦53 ¦
+-----------------------------------------------------------------------------+
Dated, Nov. 21st, 1890.
W. A. Chappell.”
“Hay Springs, Nebraska, September 6th, 1890. This contract, made and entered into this day by and between William Chappell, party of the first part, and W. H. Smith, party of the second part, witnesseth: Party of the first part agrees to build the sides and east end of a building, to be located on lot (29) of block 7 in Hay Springs, Nebraska; to place the walls in the ground two feet, and walls to be 18 inches thick and twenty-six feet high from bottom of same; and the building to be 25 by 60 feet, and to furnish stone, mortar, and all material for same; and to do the said work all in good, substantial, and workmanlike manner; and also to plaster said building, the whole of the lower and upper stories of said building, with good, three-coat, hard-finish work, furnishing all material for same; and to begin said work immediately, and carry on the same as fast as possible, without any unnecessary delay. W. H. Smith agrees to dig trench for said wall, and pay said party of the first part as said work progresses, and on completion of said work the sum of eleven hundred ($1,100) dollars. It is agreed further that at the two front corners of said building party of the first part is to lay such stone for same as party of the second part may furnish...
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