Haupt Lumber Co. v. Westman

• Decision Date: 03 May 1892
• Citation: 49 Minn. 397,52 N.W. 33
• Parties: HAUPT LUMBER CO. v WESTMAN ET AL.
• Court: Minnesota Supreme Court

49 Minn. 397

52 N.W. 33

HAUPT LUMBER CO.vWESTMAN ET AL.

Supreme Court of Minnesota.

May 3, 1892.

(Syllabus by the Court.)

1. Held, in an action to foreclose a mechanic's lien, that W., the vendor of the land on which the improvements were made, holding a mortgage for the amount of the purchase price, is a “bona fide prior mortgagee,” within the meaning of the language found in section 5, c. 200, Gen. Laws 1889, having, as such, precedence over the lien claims of certain mechanics and material men.

2. As to other lien claimants who performed work and furnished materials for the vendee, but while said W. was, in fact and of record, the owner of the land, it is held that the mortgage is secondary and inferior.

Appeal from district court, Ramsey county; CORNISH, Judge.

Action by the Haupt Lumber Company against John Westman and others to foreclose a mechanic's lien. From the judgment defendant Nellie M. Weide appeals. Modified.

Williams & Schoonmaker, for appellant.

Arthur P. Lothrop, for respondents.

COLLINS, J.

Plaintiff corporation brought this action to enforce its lien claim for materials furnished and used in the erection of a dwelling house on a city lot. The facts were not in controversy. On January 6, 1890, Mrs. Weide, a defendant, was the owner of the lot in question. She was engaged in quite an extensive business; among other things, that of buying and selling real estate and erecting houses thereon. Her husband, J. R. Weide, also a defendant, was her general agent, managing and conducting all her business. About the day last mentioned he entered into a written agreement with one Berg, by the terms of which, in his own behalf, he undertook to sell to Berg the lot for the sum of $1,725, on time. The latter was to build a house on the premises, and when the foundation thereof was completed a deed of the lot was to be delivered to him, and he was to execute and deliver a note for the full amount of the agreed purchase price, payable six months from date, and also a mortgage upon the deeded premises, securing the same. Berg then entered into a contract with defendant Jacobson for the construction of a foundation for the house, and with defendant Westman for the superstructure thereof. The foundation was substantially completed, and examined by J. R. Weide, on or before March 17th. On that day he delivered to Berg a warranty deed for the lot, dated January 6th, duly executed and acknowledged by Mrs. Weide and himself on February 12th, and at the same time received from Berg the note and mortgage agreed upon, each bearing date January 6th. The deed and mortgage were duly recorded on the day of their delivery, March 17th. Defendant Jacobson and defendant Bergstrom, who was a subcontractor under Jacobson, claim liens for labor performed and materials furnished on the foundation, commencing February 15th. Westman, the contractor for the construction of the superstructure, filed no claim for a lien, and the claims of the remaining parties-plaintiff, and defendant respondents, who were subcontractors under Westman-are for labor performed and materials furnished subsequent to the delivery and record of the deed and mortgage. We have, then, two distinct classes of lien claimants,-one being Jacobson and Bergstrom, whose claims relate back to February 15th; the other being plaintiff corporation and other subcontractors, who performed no labor and furnished no material until after the deed and mortgage were placed on record. They then performed labor and furnished materials for a contractor who, although he had previously entered into an agreement to erect the superstructure, had not commenced to perform his contract when the premises were deeded to Berg, and by him mortgaged to Mrs. Weide. Or, to put...