Gray v. Havemeyer

• Decision Date: 31 October 1892
• Docket Number: 133.
• Parties: GRAY v. HAVEMEYER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F. 174

GRAY v. HAVEMEYER et al.

No. 133.

United States Court of Appeals, Eighth Circuit.

October 31, 1892

John C Wharton and William Baird, for appellant.

John L Kennedy and M. L. Learned, for appellees.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SHIRAS District Judge.

On the 6th day of December, 1889, J. H. Van Closter executed and delivered to Sarah A. Havemeyer a mortgage on certain lots in the city of Omaha Neb., to secure the payment of a promissory note for the sum of $2,500. The mortgage was recorded in the office of the register of deeds of Douglas county, Neb., on the 17th day of January, 1890. On the 6th of December 1889, the said Van Closter executed another mortgage on the same lots to secure the payment of five promissory notes for $25 each, and payable to the O. F. Davis Company, which mortgage was recorded in the register's office of Douglas county on the 18th day of January, 1890. At some time in the latter part of the year 1889, the exact date not being made to appear on the record, the firm of Statler Bros. contracted with J. H. Van Closter for the erection of three houses upon lots 1 and 2, in block 15, in Hanscom place, the mortgages above named being given upon the west 50 feet of these lots upon which one of the buildings erected by Statler Bros. In December, 1889, Statler Bros., as we understand the record, contracted with Fred W. Gray for the furnishing of the door and window frames and other woodwork and material needed in the erection of the three houses upon lots 1 and 2. On the 20th of December, 1889, Gray furnished for each of the three houses five cellar window frames and two cellar door frames, no other delivery being made until the following March, when the furnishing of the material was resumed, and completed in June, 1890. On the 20th day of August, 1890, Gray made out under oath a claim for a mechanic's lien under the statute of Nebraska, which was, on the same day, duly filed for record and recorded in the register's office of Douglas county. On the 10th day of March, 1891, Sarah A. Havemeyer filed in the United States circuit court for the district of Nebraska a bill for the foreclosure of the mortgage held by her, the mortgagor, Van Closter, having defaulted in the payments therein called for, and to this bill the O. F. Davis Company, Fred W. Gray, and a number of others holding liens upon the realty were made parties defendant. The O. F. Davis Company answered the bill, admitting the averments thereof, and filed a cross bill praying for the foreclosure of the mortgage held by it. Fred W. Gray answered the bill of complaint, setting forth his claim for a mechanic's lien, averring that there was due him the sum of $3,456.91 for materials furnished and used in the erection of the houses built for Van Closter by Statler Bros., the same being furnished under an agreement made before December 20, 1889, and praying that the same might be adjudged to be a lien prior and paramount to that of complainant's mortgage.

The case was submitted to the circuit court upon the pleadings, the notes and mortgages, and a stipulation of facts signed on behalf of the complaint and the defendant Gray. The court granted a decree wherein it is found that the mortgages are valid liens on the realty; that the defendant Gray has a mechanic's lien for materials furnished upon the realty covered by the mortgages for the sum of $1,202; that certain other of the defendants have liens for materials furnished; that for the sum of $12, being the value of the materials furnished by the defendant Gray on the 20th of December, 1889, and before the recording of the mortgages, the said Gray has a lien prior to the mortgages, but that for the remainder of the sum due him his lien is inferior to that of the mortgagees; that, with the exception of the $12 just mentioned, the mechanics' liens, including that of F. W. Gray, are equal in point of time. Based upon these findings, a foreclosure of the mortgages was decreed, it being directed that the proceeds of the sale shall be applied in payment of costs, next to the payment of the #12 to F. W. Gray, next to the payment of the sums due on the mortgages in their order, next to the payment of the mechanics' liens, and finally to the payment of certain judgment lienholders. From this decree the defendant Gray prayed an appeal to this court, assigning as error the refusal of the trial court to adjudge his entire claim to be the prior lien upon the property. The citation was directed to and served upon Sarah A. Havemeyer and the O. F. Davis Company, and they alone have appeared in this court.

The appellees, upon appearing in this court, filed a motion to dismiss the appeal on the ground that Van Closter, the owner of the realty sought to be subjected to sale, and the mechanics' lienholders other than the appellant, are not made parties to the appeal, and therefore this court does not have before it the parties whose interests are directly involved, and whose presence is necessary to the proper disposition of the questions upon which the judgment of this court is invoked. This motion was submitted in connection with the arguments upon the main case, and in support thereof counsel for appellees urge that the decree appealed from is in fact a joint decree in favor of all the mechanics' lienholders, and therefore all should have joined in the appeal. We do not think this position is maintainable. So far as the mechanics' liens are concerned, it is not decreed that a lump sum shall be applied to the payment of these liens, to be divided pro rata among them, but the amount due each lienholder is separately decreed, and then upon the question of priority it is adjudged that they stand upon an equality. Upon this question of priority the decree is in favor of and is adverse to each one of the lienholders as between himself and the others of this class, and the appellant, Gray, has the right to assert that his lien is paramount to those of the other lienholders, and that the decree is erroneous in not awarding him this priority. Upon that question the appellant is not jointly interested with the other lienholders, but his interest is adverse to them. The contention, therefore, that, being jointly interested they should have joined in the appeal, cannot be sustained; but the real difficulty arises upon the point whether this court has before it the parties indispensably necessary to enable this court to pass upon the rights and interest involved in the litigation. It will be remembered that the only parties before this court are the holders of the two mortgages and the appellant, Gray. The latter seeks to have it adjudged by this court-- First, that his lien is prior to that of the mortgagees; second, that his lien is prior to that of the other mechanics' lienholders. Upon the first proposition, the question is whether this court should attempt to deal therewith in the absence of the owner of the realty, J. H. Van Closter. The latter is not personally bound for the payment of the claim held by the appellant, who was a subcontractor under Statler Bros. Under the statutes of Nebraska, the subcontractor may, by observing the requirements of the statute, create a lien upon the property, for the improvement of which the materials were furnished, but he does not become entitled to a personal claim against the owner of the property. Can it be said, therefore, that it is a matter of indifference to the owner of the property whether the mortgagees or the appellant is awarded priority of payment out of the proceeds realized from a sale of the property? If the appellant was entitled to hold Van Closter personally liable for the sum due him on his lien, it might be well said that it was a matter of indifference to him whether the mortgages or the mechanics' liens were...