Fuller v. Pauley

• Citation: 66 N.W. 1115,48 Neb. 138
• Parties: FULLER ET AL. v. PAULEY ET AL.
• Decision Date: 21 April 1896
• Court: Supreme Court of Nebraska

48 Neb. 138

66 N.W. 1115

FULLER ET AL.

v.PAULEY ET AL.

Supreme Court of Nebraska.

April 21, 1896.

Syllabus by the Court.

1. A person who furnishes materials for use in the erection of buildings on land to one in possession thereof, under contract of sale, may acquire a mechanic's lien on the premises for any unpaid amount of the price of the materials; but, if there is no agreement between the vendor and vendee of the land that the improvements shall be made, the lien can only attach to the interest of the vendee, and will be subsequent and inferior to the lien of the vendor for any balance of the purchase price for the land remaining unpaid.

2. A finding of a trial court on a point in respect to which the evidence is conflicting, but which there is sufficient evidence to sustain, will not be disturbed.

Appeal from district court, Madison county; Jackson, Judge.

Action by Fuller, Smith & Fuller against William T. Searles, J. M. Pauley, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.Phelps & Sabin and Wigton & Whitham, for appellants.

Allen, Robinson & Reed and W. E. Reed, for appellees.

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 “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 the 1st of November, 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...