Dunphy v. Riddle
| Citation | 1877 WL 9651,86 Ill. 22 |
| Parties | JOHN M. DUNPHYv.FRANCIS A. RIDDLE et al. |
| Decision Date | 30 September 1877 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook County; the Hon. W. W. FARWELL, Judge, presiding. Mr. ROBERT HERVEY and Mr. HERBERT B. JOHNSON, for the appellant.
Mr. WIRT DEXTER and Mr. S. SIBLEY, for the appellee the United States Mortgage Company.
Mr. JAMES E. MONROE, for the appellee William G. Gallaher.
This was a petition filed in the circuit court of Cook county, on April 28, 1875, by the petitioner, John M. Dunphy, to enforce a mechanic's lien on certain described real estate.
The defendants in the suit were Francis A. Riddle--for whom, as owner, in pursuance of a written contract made on November 28, 1873, it was alleged the petitioner erected a dwelling-house on the premises, and two mortgagees of the premises, the United States Mortgage Company and William G. Gallaher. The court found and declared the lien as against Riddle, the owner, and ordered a sale of the premises for its satisfaction, subject to the two mortgages.
The petitioner, Dunphy, appeals.
The only controversy between Dunphy and the United States Mortgage Company is one of fact--whether he waived or released his lien. Riddle and wife executed the mortgage on the lot to the United States Mortgage Company on November 28, 1873--the same day of the making of the contract for erecting the building--to secure the payment of $11,160; the mortgage being recorded December 11, 1873. It appeared by oral testimony that the money was borrowed for the purpose of constructing the dwelling-house, and that it was agreed between Riddle and the mortgage company that the latter should advance about forty per cent of the value of the land, and pay the rest as the house was built, reserving enough to finish the building, with the understanding that the building was to be clear of all mechanics' liens; and it would seem to have been advanced accordingly, to wit, $5,500 December 17, 1873; $2,250 July 21, 1874; and $3,411 November 4, 1874, which, with interest, made up the sum of $11,160.
It was testified to by Mr. Sansome, the agent of the company who negotiated the loan for it, that in September or October, 1874, Riddle called on him in regard to the balance of the loan, and that witness told Riddle he must be satisfied there were no liens before the balance of the money could be paid. Riddle testifies to the same, and that he told Dunphy what Sansome had said, and drew up a release purporting to release all liens, which was signed by Dunphy and by McDougal & McKinley--the two latter appear to have been sub-contractors for the carpenterwork--but Burnham, the architect, refused his signature, because the Terra Cotta company had a lien,--on which account Riddle says he tore up the release, in presence of Dunphy and Burnham. Dunphy admits the signing of this release by him and McDougal & McKinley, and that he knew the object of it was to give it to Sansome, so that Riddle could get the balance of the money, but says they afterward recalled it. Riddle testified that he drew another release, which was signed by Dunphy and by McDougal & McKinley, which he took to the office of the mortgage company on the occasion the last payment was made, November 4, 1874; at which time witness, with Dunphy and McKinley, met at Sansome's office, by previous appointment, for the purpose of getting the balance of the money. Mr. Sansome testifies that he then told Dunphy that he could pay none of the balance of the money to Riddle until assured that there were no liens or chances of liens on the property; that Dunphy then verbally assured him there were no liens; no release was asked for; that thereupon he gave Riddle a draft for $3,411; that without such assurance given by Dunphy he would not have paid the money. Riddle corroborates Sansome as to the making of such assurances; says that he did not then exhibit the second release, and afterward handed it to Dunphy.
Dunphy and McKinley both deny the signing of a second release, and deny the making of the statements by Dunphy as testified by Sansome and Riddle. There was here a conflict of testimony, and it was for the court below to pass upon the credibility of the witnesses. We can not say that the court was not warranted in finding from the testimony, as it did, that as to the United States Mortgage Company appellant waived or released his lien.
The court below gave precedence to the mortgage of Gallaher over the lien of the petitioner, for the reason that the suit against Gallaher was not commenced within six months after the last payment became due to the petitioner. The provision of the statute fixing the time of limitation in this respect is section 28 of the Mechanic's Lien Act, page 668 Revised Statutes of 1874, which is as follows: “No creditor shall be allowed to enforce the lien created under the foregoing provisions, as against or to the prejudice of any other creditor or any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable.” The mortgage of the premises subject to the mortgage of the United States Mortgage Company was made by Riddle to Gallaher April 13, 1874, and recorded June 1, 1874, and was to secure the payment of Riddle's promissory note of the same date for $7,000 payable to Gallaher one day after date.
The last payment for labor and materials became due and payable to the petitioner, under the contract, on November 18, 1874. The petitioner filed his petition April 28, 1875. F. A. Riddle, the United States Mortgage Company, and Charles R. Steele were at the time of the filing of the petition made parties defendant, and a summons was issued against them alone, and served upon them April 28, 1875.
On May 22, 1875, on motion of the petitioner, leave was given him to amend his petition by making Gallaher a party defendant, and order made that a summons issue against him, which issued accordingly on the same day.
Thus it will be seen the suit was commenced against Riddle the owner, the mortgage company, and Steele,...
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