Finnegan v. Ihinger

• Decision Date: 19 July 1939
• Docket Number: 34230.
• Citation: 92 P.2d 538,150 Kan. 357
• Parties: FINNEGAN v. IHINGER et al.
• Court: Kansas Supreme Court

92 P.2d 538

150 Kan. 357

FINNEGAN v. IHINGER et al.

No. 34230.

Supreme Court of Kansas

July 19, 1939

Syllabus by the Court.

Where Home Owners' Loan Corporation refused to permit house which was to be removed from seller's premises to buyers' land, to be placed on buyers' land unless mortgage on buyers' land was paid, and seller furnished money to pay mortgage and received mortgage in lieu of the Home Owners' Loan Corporation mortgage, which had been recorded prior to performance of labor on buyers' land by lien claimants, seller was entitled to be subrogated to rights of Home Owners' Loan Corporation and to priority over rights of lien claimants. Gen.St.1935, 60-1401.

Where a building was sold, and a chattel mortgage was executed for the purchase price thereof and other items and was recorded after building had been severed from seller's land, but before removal to buyers' land, and mortgage provided that building was to remain personalty until mortgage debt was paid, seller was entitled to priority over lien claimants who had performed services on buyers' land, to extent of the unpaid purchase price of building. Gen.St.1935, 60-1401.

The fact that seller of building, which was severed from seller's land and removed to buyers' land, took a real estate mortgage covering buyers' entire debt to seller and purchased insurance under insurance clause of mortgage, did not constitute an "abandonment" of seller's right to consider the building as personalty, in accordance with provision in chattel mortgage against lien claimants who had performed services on buyer's land. Gen.St.1935, 60-1401.

The record in an action involving the foreclosure and priority of liens examined and held: (1) Under the circumstances narrated in the opinion, a party who paid a real estate mortgage, at the instance and request of the mortgagors, which had been recorded long prior to the performance of labor on the premises, and who was given a real estate mortgage on the land in lieu of the mortgage she had paid, was entitled to be subrogated to the rights of the former mortgagee, and to priority over the rights of lien claimants; (2) where a building was sold and a chattel mortgage was executed for the purchase price thereof, and other items, and recorded after the building had been severed from the land of the seller but before the building was moved to the land upon which lien claimants performed labor, the holder of the chattel mortgage was entitled to priority over lien claimants to the extent of the purchase price; (3) the extent to which priority was allowed by virtue of the chattel mortgage constituted the unpaid purchase price of the building; (4) the building under the express agreement of the parties, constituted personalty and remained personalty until the purchase price was paid and the right to regard it as personalty and to claim a prior lien to the extent of the purchase price was not abandoned.

Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.

Action to foreclose a mechanic's lien on realty by M. J Finnegan against Chester E. Ihinger, Theo C. Landon, and others. From a judgment in favor of Theo C. Landon, the other defendants and the plaintiff appeal.

Judgment affirmed.

HARVEY, J., dissenting in part.

Frank E. Miller, E. R. Sloan, W. Glenn Hamilton, Floyd A. Sloan, and Eldon R. Sloan, all of Topeka, for appellants.

A. Harry Crane, Ward D. Martin, and George E. S. Crane, all of Topeka, for appellee.

WEDELL Justice.

This was originally an action to foreclose a mechanic's lien on real estate under the provisions of G.S.1935, 60-1401. It expanded into a contest involving the priorities of various liens. The plaintiff Finnegan, was denied a lien and while he appears on the records here as an appellant no abstract or brief is filed by his attorney. The defendant landowners, the Ihingers, have not appealed. The defendants, George Coon, Leo Sisco and Frank Whelan, the latter doing business as the Whelan Lumber Company, have appealed.

Frank Whelan, however, subsequently dismissed his appeal.

The contest here is between the two remaining appellants who claim first liens by virtue of G.S.1935, 60-1401, and the appellee, Theo C. Landon, who claims a first lien as to certain amounts by virtue of a chattel mortgage on the building which was sold by her to the Ihingers and which was moved onto the real estate in question. Appellee also claims a first lien by virtue of a real estate mortgage which she obtained on the premises from the Ihingers when she paid, at the request of Ihingers, a former first real estate mortgage on the land which had been given and recorded by the Ihingers about three years prior to the performance of labor and the furnishing of materials by appellants. This first lien appellee claims upon the theory of subrogation.

Appellee had taken a chattel mortgage upon the building in question for the purchase price thereof and for some other items. That mortgage was executed and recorded after the building was severed from the foundation on appellee's land and before it was moved from the land of appellee to the premises of the Ihingers. It is concerning the judgment which gave appellee priority of liens as to certain amounts that appellants complain.

The court made the following extensive findings of fact, which are not challenged:

"Finding Number One contains nothing pertinent to this appeal.

"Finding Number Two describes the property on which the material was placed and labor performed by the various claimants.

"Finding Number Three in substance states that under contract between plaintiff and defendant Chester E. Ihinger, plaintiff, moved the dwelling house from the Landon property to the Ihinger property. That the work was commenced on or about June 18th, 1937, and completed on or about August 3rd, 1937, and that plaintiff filed his lien on or about October 16th, 1937.

"Finding Number Four in substance states that pursuant to a contract with the Ihingers, defendant George Coon commencing on March 8th, 1937, furnished labor and material for excavation of a cellar on the premises referred to, that statement of his lien was regularly filed in the office of the clerk of the district court of Shawnee County.

"Finding Number Five concerns the lien of Cecil Thompson.

"Finding Number Six in substance is that pursuant to agreement Frank Whelan, dba. The Whelan Lumber Company, furnished and delivered materials between April 15th and August 31st, 1937, which were used in improving property described, and that his lien was regularly filed in the office of the clerk of the district court of Shawnee County.

"Finding Number Seven concerns the lien of Mervin Nicolay.

"Finding Number Eight concerns the lien of Leo Sisco.

"9. That during the last of January or the forepart of February, 1937, the defendants Chester E. Ihinger and Josephine Ihinger, entered into negotiations for the purchase of two houses, then located upon the property belonging to the defendant, Theo C. Landon, and that as a result of such negotiations Theo C. Landon agreed to take $1000.00 as the purchase price of the two houses.

"That subsequently, and about March 8, 1937, Josephine Ihinger sold one of said houses to A. E. Sisco for the sum of $450.00 upon which the purchaser paid the sum of $400.00 which was turned over by Josephine Ihinger to Theo C. Landon, and there remains due and unpaid on the purchase price of said house from Chester E. Ihinger and Josephine Ihinger to Theo C. Landon, the sum of $50.00.

"That thereafter said house was removed from the property owned by Theo C. Landon.

"10. That subsequent to the sale of the first house it was agreed between Theo C. Landon and the defendant Ihingers, that the purchase price of the second house was to be $550.00, which the Ihingers agreed to pay.

"That thereafter and on the 23rd day of April, 1937, Theo C. Landon executed to Chester E. Ihinger a bill of sale for said second house which is recorded in Book 37 at page 3 in the records of the Register of Deeds of Shawnee County, Kansas, on April 23, 1937; and at the same time and as part of the same transaction, Chester E. Ihinger and Josephine Ihinger executed and delivered a chattel mortgage upon said house to the defendant, Theo C. Landon in the amount of $750.00, which is recorded in Book 37 at page 2 of the office of the Register of Deeds of Shawnee County, Kansas, on April 23, 1937, $550.00 of which amount represented the unpaid purchase price of said house.

"That on April 23, 1937, said house which was the subject of said bill of sale and chattel mortgage, had been severed from its foundation, but not yet removed from the real estate owned by Theo C. Landon.

"11. That prior to and during all of the times referred to in these findings, the Home Owners Loan Corporation held a mortgage on the premises owned by the defendants Ihingers which is involved in this action, and also upon other real estate adjacent thereto, in the amount of $2,458.00, bearing date of June 29, 1934, and recorded on the 21st day of August, 1934, in Book 687 at page 489 of mortgages in the office of the Register of Deeds of Shawnee County, Kansas, which was a first lien upon said real estate.

"That some time prior to March 4, 1937, the defendants Ihingers made written application to the Home Owners Loan Corporation for a partial release of said mortgage as to the particular tract to which they contemplated moving the house in question.

"12. That on or about March 19, 1937, the defendant Ihingers entered into a contract with W. H. Spangler to remove the house in question to the property owned by them for an agreed price of $600.00. That after said Spangler had raised the house from its

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