Gunter v. Ludlam

• Decision Date: 16 October 1922
• Docket Number: 190
• Citation: 244 S.W. 348,155 Ark. 201
• Parties: GUNTER v. LUDLAM
• Court: Arkansas Supreme Court

244 S.W. 348

155 Ark. 201

GUNTER v. LUDLAM

No. 190

Supreme Court of Arkansas

October 16, 1922

Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; reversed and affirmed.

Decree affirmed in part and reversed in part.

Geo W. Dodd and I. C. Neal, for appellant.

The court erred in decreeing to the lumber company and the interveners a lien upon the fee of the lots superior to the rights of appellant. C. & M. Dig., sec. 6909; 57 Ark. 481; 5 Ark. 217.

The interest of a vendor of land who makes an executory contract of sale is not liable to a mechanics' lien merely because the vendee erected a building or made improvements thereon. 18 R. C. L. 896.

A purchaser, under a contract of sale, who is in possession can render his interest therein subject to a mechanics' lien. 27 Cyc. 59. A vendor has no contractual relation with the lien claimant. 18 R. C. L. 897. Something more than mere inactive consent is necessary in order that a lien may be acquired against the owner. 126 Ill. 72; 18 N.E. 275; 34 Utah 213; 97 P. 111; 2 Dougl. (Mich.) 54; 38 Mich. 587; 38 Neb 691; 41 Am. St. Rep. 767; 23 L. R. A. 600, note; Cook v. Moore, ms. op.

OPINION

MCCULLOCH, C. J.

John Gunter and M. W. Pate, the appellants, owned a certain tract or lot of real estate in the city of Fort Smith, and they entered into a written contract with one of the appellees, Ludlam, for the sale of the property at the price of $ 1,000, of which $ 300 was to be paid in cash and the remainder in monthly installments. The contract was in duplicate, signed by each of the parties, but Ludlam only paid $ 200 of the cash consideration, and his copy of the contract was retained by appellants until the remaining sum of $ 100 should be paid. Ludlam was placed in possession of the property, but failed to pay the said sum of $ 100 and defaulted in monthly installments. A clause in the contract provided for acceleration of the maturity of all installments in the event of default in payment of any installment. Ludlam erected a house on the lot and purchased material from the Bell Lumber Company, appellees, and other parties, who claim liens on the property for labor and material furnished in the construction of the building. Ludlam borrowed the sum of $ 207.50 from appellant Gunter to use in paying for the foundation of the building.

This action was instituted by the two appellants, Pate and Gunter, and they seek to foreclose their lien as vendor for the unpaid purchase price. Gunter also claims a mechanics' lien by way of subrogation to the rights of the person who built the foundation of the house, and who, it is alleged, was entitled to a lien. The suit was against Ludlam and his wife, and also against the Bell Lumber Company and other parties asserting liens against the property.

On the hearing of the cause before the chancellor, there was a decree against Ludlam, in favor of the appellants, for the amounts claimed by them, respectively, and also a decree in favor of each of the parties asserting liens for labor and material furnished in the construction of the building, and the property was ordered sold to discharge the liens of the parties, but the court declared the liens of the appellee claimants superior to the liens of appellants, and an appeal has been duly...