Hathaway v. Rankin

• Decision Date: 28 November 1884
• Court: Kansas Supreme Court
• Parties: S. D. HATHAWAY, et al., v. DAVIS & RANKIN, et al

5 P. 29

32 Kan. 693

S. D. HATHAWAY, et al., v. DAVIS & RANKIN, et al

Supreme Court of Kansas

November 28, 1884

Error from Clay District Court.

ACTION brought by D. J. Davis and Thomas Rankin, partners as Davis & Rankin, against C. M. Faulkner and O. J. Lyman partners as Faulkner & Lyman, and S.D. Hathaway and others, to foreclose a mechanics' lien. Trial by the court, at the January Term, 1884, upon an agreed statement of facts. The opinion states the material facts, and the nature of the judgment rendered thereon. Defendants Hathaway and Moss bring the judgment here for review.

Judgment affirmed.

Harkness & Godard, for plaintiffs in error.

E. W McJunkin, for defendants in error Davis & Rankin; C. M. Anthony, for defendant in error Heckert.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The questions involved in this case are simply with reference to the validity and priority of certain liens claimed to exist upon certain real estate, buildings, fixtures and machinery, belonging to the firm of Faulkner & Lyman. The facts are substantially as follows: Originally, D. H. Culp owned 160 acres of land, ten acres of which he leased to Faulkner & Lyman for the purpose that they might erect and operate a creamery thereon. This lease was "for the term of one year, with the privilege of five years, from December, 1882, said Faulkner and Lyman to have the privilege of removing any and all improvements and buildings erected and placed thereon by them." Two buildings were erected thereon by Faulkner & Lyman, one being the creamery and ice-house, and the other the mill-house. Heckert, from December, 1882, up to March 17, 1883, furnished the lumber for the erection of these buildings. Davis & Rankin, from March 5, 1883, up to April 28, 1883, furnished the machinery, fixtures and appliances for the creamery. On March 19, 1883, Faulkner & Lyman gave to S.D. Hathaway a chattel mortgage on all the machinery, fixtures, appliances, goods and chattels used about the creamery, and the mortgage was duly filed in the office of register of deeds on March 20, 1883. On June 6, 1883, Culp executed a warranty deed to Faulkner & Lyman for one acre of said ten-acre tract of land. This one acre included all the land upon which the creamery was situated. On July 3, 1883, Faulkner & Lyman executed another chattel mortgage to Hathaway upon the aforesaid mortgaged property. On July 14, 1883, Heckert filed his statement for a mechanics' lien. On August 9, 1883, Davis & Rankin filed their statement for a mechanics' lien.

It seems to be admitted that these statements were regular, and filed in proper time to procure a lien, provided that any of the property mentioned in the statements, and now in controversy, was subject to such alien. On August 3, 1883, Moss attached the said one acre of land in an action brought by him against Faulkner & Lyman. On August 14, 1883, Davis & Rankin commenced this action to foreclose their mechanics' lien, making Faulkner & Lyman, Hathaway, Moss and Heckert parties defendant. On August 27, 1883, Hathaway offered for sale under his first chattel mortgage all the property covered by his two mortgages, and sold it to himself. On August 21, 1883, Moss obtained a judgment in his said action against Faulkner & Lyman, and an order for the sale of the attached property. Moss and Faulkner & Lyman were the only parties to that action.

This present case was submitted to the court below without a jury upon an agreed statement embodying substantially the foregoing facts, and the court rendered judgment, giving to Heckert a first lien upon the leasehold property, and to Davis & Rankin a second lien thereon, and to Hathaway a third lien thereon, and to Moss a fourth lien thereon, and to Moss a first lien upon Faulkner & Lyman's interest in the one acre of land conveyed to them by the warranty deed of Culp, except their leasehold interest therein as aforesaid. Is this judgment correct? There is no contest in this court between Heckert and Davis & Rankin, or between Hathaway and Moss, but the contest in this court is simply between Hathaway and Moss, the plaintiffs in error, on the one side and Davis & Rankin and Heckert, the defendants in error, on the other side. We think the judgment of the court below is correct. About the only ground upon which it is claimed that it is not correct is the...