Fuller, Smith & Fuller v. Pauley

• Decision Date: 21 April 1896
• Docket Number: 6521
• Citation: 66 N.W. 1115,48 Neb. 138
• Parties: FULLER, SMITH & FULLER, APPELLANTS, v. J. M. PAULEY ET AL., APPELLEES
• Court: Nebraska Supreme Court

66 N.W. 1115

48 Neb. 138

FULLER, SMITH & FULLER, APPELLANTS, v. J. M. PAULEY ET AL., APPELLEES

No. 6521

Supreme Court of Nebraska

April 21, 1896

APPEAL from the district court of Madison county. Heard below before JACKSON, J.

AFFIRMED.

Phelps & Sabin and Wigton & Whitham, for appellants.

Allen Robinson & Reed and W. E. Reed, contra.

OPINION

HARRISON, J.

It appears from the pleadings and evidence in this case that W T. Searles had contracted to purchase from the state a section of what is generally known as "school land," or a "school section," and had such written evidences or contracts as are issued in transactions of this character between the state and a purchaser of school lands. On October 1, 1887, he sold the land to one J. M Pauley, the price agreed upon being $ 12.50 per acre, or $ 8,000 for the entire tract. Pauley was to pay the amount then unpaid to the state, $ 4,320, and to pay in cash to Searles $ 3,680. Of this last mentioned sum he paid but $ 80. In December of the same year, or the following January, pursuant to an agreement then entered into by the parties, Pauley gave his notes, payable six months after date, to Searles for the unpaid balance of the amount of what was to have been the cash payment of the purchase consideration. After this arrangement Pauley took possession of the land and remained in possession until about November 1, 1888, and during the time just indicated erected a house and barn and made some other improvements thereon, and for the lumber and other materials used in so doing became indebted to the appellants, and also to S. K. Painter for some material. These bills not being paid, a lien was prepared and filed by each party, in accordance with the provisions of our statute in relation to mechanics' liens, and in this, an action by appellants to enforce their lien, and in which S. K. Painter, the other lien-holder, and W. T. Searles were made defendants, a decree was rendered foreclosing the lien of appellants, also that of Painter, but subordinating them to the rights or demand of Searles, Pauley's vendor, for the unpaid balance of the purchase price of the land.

The question of the priority as between the liens for material and the vendor's claim for unpaid purchase money is the main one presented by the appeal. Collateral to this, but quite important in a final determination of the case, is the inquiry of whether Pauley, as a part consideration for...