Davis-Wellcome Mortg. Co. v. Long-Bell Lumber Co.

• Decision Date: 07 March 1959
• Docket Number: No. 41018,DAVIS-WELLCOME,LONG-BELL,41018
• Citation: 184 Kan. 209,336 P.2d 469
• Parties: MORTGAGE COMPANY, a Corporation, Appellant, v.LUMBER COMPANY, now International Paper Company, Appellee.
• Court: Kansas Supreme Court

Page 469

336 P.2d 469

184 Kan. 209

DAVIS-WELLCOME MORTGAGE COMPANY, a Corporation, Appellant, v. LONG-BELL LUMBER COMPANY, now International Paper Company, Appellee.

No. 41018.

Supreme Court of Kansas.

March 7, 1959.

Syllabus by the Court

1. The trial court's finding as to the dete when construction started upon real estate, based on conflicting evidence, is conclusive on appeal; the triers of facts are the exclusive judges of the credibility of the witnesses and of the weight to be given their testimony, and on appellate review where findings are attacked for insufficiency of the evidence this court's power begins and ends with a determination as to whether there is any competent substantial evidence to support them.

2. Under G.S.1949, 60-1401, a mechanic's lien for materials used in the construction of houses upon real estate covered by a mortgage, takes precedence in a foreclosure proceeding over the mortgage where construction was started after the mortgage was executed and delivered but before it was recorded. Following Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 202, 336 P.2d 463.

Milo M. Unruh, Wichita, argued the cause, and Edward F. Arn, Richard F. Mullins, William P. Timmerman, H. R. Kuhn and C. W. Eisenbise, Wichita, were with him on the briefs for appellant.

Dale B. Stinson, Jr., Wichita, argued the cause and was on the briefs for appellee.

SCHROEDER, Justice.

This is an appeal from a judgment in a mortgage foreclosure action, wherein the trial court determined the mechanic's lien of the appellee (one of the defendants in the trial court), to have priority over the mortgage lien of the appellant (plaintiff). This appeal is only from that part of the judgment which determined the priority between the respective liens of appellant and appellee.

The principal question of law presented concerns the priority of liens where construction started on real estate covered by a mortgage which was executed and delivered the day before construction started but not recorded until one day after construction had started.

The matters presented in this appeal are identical with those presented in a companion case this date decided, Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. ----, 336, P.2d 463. The principal difference is that in this action Richard Bills and his wife were the owners of the real estate covered by the mortgage, while in the companion case Floyd L. Durham and his wife were the owners of the real estate (in the same subdivision) covered by the mortgage in that case, otherwise the facts are similar and the questions of law presented are identical.

On June 28, 1955, Richard Bills and his wife (defendants below but not parties to this appeal), owners of eight unimproved lots in Eastview Heights Subdivision in the City of Newton, executed and delivered to the Davis-Wellcome Mortgage Company of Topeka, Kansas, appellant, their promissory note and real estate mortgage covering lots 10, 11, 14 and 15, block 2, and lots 2, 3, 4 and 5, block 4, in the above subdivision. This mortgage was filed for record at 12:00 o'clock noon in the office of the register of deeds of Harvey County, Kansas, on June 30, 1955. Lot 10, block 2, above, was subsequently released from the lien of said mortgage and is not involved.

The mortgagors defaulted in paying to appellant the moneys due it under the note and mortgage above described, and subsequent to the default the instant mortgage foreclosure action was commenced.

As of the date of judgment, there was due on said note and mortgage the total sum of $46,082.12 with interest at 5% per annum from April 10, 1956.

The appellee, the Long-Bell Lumber Company, now International Paper Company, under contract with the owners of the property above described, furnished certain building materials used in the construction of houses upon such real estate. The total amount due to the appellee from the owners for such material furnished was $30,219.50. None of this amount was paid and appellee filed its mechanic's and materialman's lien statement with the clerk of the district court of Harvey County, Kansas, on December 23, 1955. The lien statement was properly filed in accordance with the applicable statutes of...