Dierks & Sons Lumber Company v. Morris
| Decision Date | 07 April 1913 |
| Parties | DIERKS & SONS LUMBER COMPANY, Appellant, v. ALBERT F. MORRIS et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
Judgment affirmed.
Pew & Proctor for appellant.
(1) The court should have sustained the lien claimed by plaintiff against the freehold interest of respondent Helen O. Orear because under the lease Helen O. Orear required the improvements, into which the materials furnished by appellant entered, to be made, and constituted the lessee, Comet Realty Company, her agent to make the said improvements. Dougherty-Moss Lbr. Co. v. Churchill, 114 Mo.App 578; Curtin & Clark Hdw. Co. v. Churchill, 126 Mo.App. 462.
McCune Harding, Brown & Murphy for respondents.
(1) Statutes provide the remedy and extent of a mechanic's lien on a leasehold interest. Sec. 8216, R. S. 1909; Sec. 8212, R. S. 1909. (2) Materialman can only have lien on leasehold interest under a contract with lessee. Jones on Liens, secs. 1276-1277; Cornell v. Barney, 94 N.Y. 398; Knapp v. Brown, 45 N.Y. 212; Albaugh v. Litho. Co., 14 App. D. C. 113.
--Suit for the enforcement of a mechanic's lien against a building and the lot on which it stands. Defendant Helen O. Orear owns the fee subject to a ninety-nine year lease given by her to the Comet Realty Company, which lease was duly recorded prior to the furnishing of the materials for which the lien is sought.
The only question involved is whether or not plaintiff is entitled to a lien against the freehold interest. The trial court rendered a general judgment against Morris & Kemp, the contractors, for $ 801.25, the balance due on the account, and made the judgment a lien against the leasehold interest held by the Comet Realty Company, but denied a lien as to the interest owned by Helen O. Orear. Plaintiff appeals, claiming that it is entitled to a lien against the interest of both these defendants.
The ninety-nine year lease, above referred to, contains two paragraphs which are as follows:
Section 4. The lessee further covenants and agrees to keep the improvements now on said property in good repair and that it will at its own cost and expense expend within the first year of this lease not less than the sum of five thousand ($ 5000) dollars for additions and improvements to the building on said demised premises, subject to the approval of lessor as to character of construction.
Section 12. All and singular the stipulations, covenants, agreements and conditions contained in this lease shall inure to the benefit of and bind the heirs, successors, assigns and legal representatives of lessor and of lessee, respectively. It is further stipulated and agreed that in all provisions of this lease wherein dates and periods of time are named, that time is strictly of the essence of the contract herein expressed. Nothing in this instrument is intended, nor shall confer on the lessee, its successors, assigns or legal representatives, any right or legal authority to impose any mechanic's lien on the fee of the said demised realty for any work or labor done, or material furnished, under any contract therefor on behalf of any contractor with lessee, his heirs, assigns, or legal representatives, but any such lien claim shall affect and attach only to the leasehold rights and interests acquired by the lessee hereunder.
At the time the lease was executed there was a three-story store building on the premises partitioned off into small rooms on the second and third floors. Upon taking charge under its lease, the Comet Realty Company entered into a contract with Morris & Kemp, the contractors herein, by which the following improvements and repairs were made:
They built an addition to the rear of the building forty feet in length and twenty-five feet in width; placed a concrete floor in the basement, a new floor on the first floor, and patched the floors on the second and third floors; placed a new plate glass front on the first floor and tore out all of the partitions on the second and third floors, making the space on each floor the full length of the building, including the addition to the rear; changed the stairs, removing them from the front to the back of the elevator on the first floor; plastered the walls throughout the building, and constructed a concrete driveway from the alley down to the basement of the building.
The materials for which this lien is sought were furnished Morris & Kemp under this contract and were used by them, but the evidence does not show what part went into the construction of the addition nor what part was used in the remodeling and repairs.
No contract or personal dealings of any kind were shown on the part of Helen O. Orear with either the plaintiffs or the contractors in reference to the work done on the building.
The rent reserved in the lease was $ 3000 per annum, payable quarterly, for the first ten years, $ 3300 per annum for the next ten years, and $ 3500 per annum for the remainder of the term, seventy-nine years.
Under the facts in this case is the plaintiff entitled to a lien against the reversionary interest?
A great many cases from other States have been cited as bearing upon the question here involved. But so much depends upon the language of the statutes in each particular case that many of them cannot be relied upon as safe guides in determining the point in controversy. The wording of our statute must of course control, and we are therefore confined largely to the authorities from this State in reaching a conclusion as to what that language means.
An examination of our statute discloses that whenever a mechanic's lien is attempted to be established against an interest in land, it must have, as its ultimate foundation, a contract made with the owner of that interest or with that owner's agent. [Sec. 8212, R. S. Mo. 1909.] So that unless it can be said, either as matter of law or as a legal inference arising from the facts, that the Comet Realty Company was the agent of Helen O. Orear to make the improvements and repairs, the lien cannot be established against her interest.
Now, can it be said that merely by reason of the fact that a lessee covenants with a lessor to make certain repairs and improvements which will become the property of the lessor at the end of the term, this necessarily makes the lessee an agent of the lessor so as to bind the latter's freehold interest with a lien for the materials used in the improvement? If so, then no matter what is the character and extent of the improvements, nor how strong the language of the lease denying to the lessee the authority to bind the lessor's interest with a lien, the latter will nevertheless be bound, because the lien is a creature of the statute; and whenever the lessee, in contracting for improvements, acts as the "agent" of the lessor, within the meaning of that word as used in the statute, the freehold is bound by the lien regardless of the inhibitory terms of the lease.
At common law the burden of making improvements and keeping up repairs was on the tenant. There was no obligation on the part of the landlord to do so. And our mechanic's lien laws should be construed in harmony with this principle unless the language of the statute is to the contrary.
Defendant contends that section 8216 of our statute clearly distinguishes the right to a lien as between the holder of the fee and the holder of the leasehold. It is true that section, in the case of leased property, gives a lien on the building and on the leasehold term, and provides that the purchaser under the lien proceedings shall be held to be an assignee of the leasehold term and shall have the right to pay the rent and all arrears and thus prevent a forfeiture for nonpayment thereof, unless the lessor has regained possession of the property for lessee's noncompliance with the terms of the lease prior to the commencement of the improvements, in which case the purchaser under the lien can remove the improvements, within sixty days after he shall purchase the same, and the owner shall receive the rent down to the date of the removal of the building.
But as this section may be aimed at those instances where the lessor has not required the improvements to be made, or has merely permitted them to be made, it is not decisive of the question in this case. And we are, therefore, thrown back on the other sections of our statute in order to ascertain what will constitute an "agent" of the "owner or proprietor" with whom the contract for the improvements must be made. For, if solely by reason of the covenant to improve, the Comet Realty Company is made the "agent" of Helen O. Orear, or if, by reason of the nature, character and extent of the improvements and the circumstances under which they are made, said company becomes her "agent" then the lien should extend to her interest without regard to the terms of the contract between them.
It would seem to be clear that the mere covenant to improve contained in the lease would not create the relation of agency between Mrs. Orear and the Comet Realty Company. As said in Albaugh v. Litho-Marble Co., 14 Appeal Cases D. C., the covenant ...
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