Clark & Co. v. Parker
| Decision Date | 08 June 1882 |
| Parties | CLARK & CO v. PARKER ET AL |
| Court | Iowa Supreme Court |
Appeal from Montgomery Circuit Court.
ACTION to foreclose a mechanic's lien. The facts as shown by the findings of a referee and which were not excepted to are in substance as follows: The property against which a lien is sought was originally owned by one Hall. One Parker purchased the property of Hall, and employed the mechanic Olston, who furnished labor and materials for an improvement upon the property, filed his claim for a lien and assigned his claim to the plaintiffs, which is the claim now sued on. Parker the employer of Olston never had a deed of the premises. He had merely a contract for a deed. What if anything he paid does not appear. After Olston's lien had attached, which is the lien in question, Parker assigned his contract to one Potter, and Potter assigned the contract to the defendant Welpton, the appellant. Welpton paid the balance due on the contract to Hall and received from him a deed. Before the Olston lien attached, one Fisher & Co. acquired a mechanic's lien, obtained a decree against the building on the property, and caused the building to be sold on execution; and the defendant Welpton has become the owner of the building through the execution sale Upon the facts thus found the referee held that the plaintiff's were entitled to a lien for the amount of their claim, $ 264.75, against the land but not against the building, and decree was rendered accordingly. The defendant Welpton appeals.
AFFIRMED.
Smith McPherson, for appellant.
C. E Richards, for appellee.
The appellant contends that the lien in question could attach only to the interest which Parker, the owner and employer had in the premises, which, at best, was only an equitable interest, and was subject to Hall's claim for the purchase-money so far as the same was not paid by Parker.
In our opinion the case is not different from what it would have been if Hall, instead of giving a contract for a deed, had given a deed, and taken a mortgage to secure the purchase-money, and afterwards the appellant had purchased and taken a deed of the premises. She would of course have purchased and taken her deed subject to the lien and subject to the mortgage paramount to the lien. Whether upon payment of the mortgage she would be entitled to be subrogated and hold the same for her protection we need not determine. We must be allowed to express great doubt, however, whether if the appellant had set up her payments and proved them she would have been entitled to be allowed the amount thereof as a lien against the premises paramount to the mechanic's lien. But she does not aver in her answer that she paid anything. It is true the referee found that she paid the balance due, but he did...
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