Henry & Coatsworth Company v. Halter

• Decision Date: 08 June 1899
• Docket Number: 8897
• Citation: 79 N.W. 616,58 Neb. 685
• Parties: HENRY & COATSWORTH COMPANY, APPELLEE, v. ALEXIS HALTER, IMPLEADED WITH CHARLES W. HARE ET AL., APPELLEES, AND EATON & PRINCE COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

79 N.W. 616

58 Neb. 685

HENRY & COATSWORTH COMPANY, APPELLEE, v. ALEXIS HALTER, IMPLEADED WITH CHARLES W. HARE ET AL., APPELLEES, AND EATON & PRINCE COMPANY ET AL., APPELLANTS

No. 8897

Supreme Court of Nebraska

June 8, 1899

APPEAL from the district court of Lancaster county. Heard below before HOLMES, J. Reversed.

REVERSED.

Stewart & Munger and Charles A. Robbins, for Eaton & Prince Company and others, appellants:

The sale under the Tiernan judgment was void, because the judgment had been paid in full by the debtor. (Shaw v Clark, 6 Vt. 507; Pope v. Benster, 42 Neb. 305.)

The execution sale was void because it was made at the instance of an intermeddler, without knowledge of any person interested in the judgment. (Taylor v. Robinson, 14 Cal. 396; McCracken v. San Francisco, 16 Cal. 591; Cook v. Tullis, 18 Wall. [U. S.] 332; Wood v McCain, 7 Ala. 800.)

The execution sale was void because of a conspiracy which prevented bidding. (Goble v. O'Connor, 43 Neb 49; Hay's Estate, 159 Pa. St. 381.)

The execution sale was void because the sheriff accepted securities for the purchase price instead of money. (Hooper v. Castetter, 45 Neb. 67.)

Defendants Boggs, the Clark & Leonard Investment Company, Hare, and Tyler were parties to the fraudulent sale under the Tiernan judgment, accepted interests and securities under that sale in place of the interests and securities they previously held,. and have lost by their fraud all right to claim under those original securities as against appellants. (Pereau v. Frederick, 17 Neb. 117; Merriam v. Calhoun, 15 Neb. 569; Home Fire Ins. Co. v. Kennedy, 47 Neb. 138; Richmond v. Morford, 4 Wash. 337; Stanley v. White, 160 Ill. 605; Stevenson v. Crapnell, 114 Ill. 19; Worrall v. Munn, 5 N.Y. 229; Miller v. Fletcher, 27 Gratt. [Va.] 403; Ryan v. Cooke, 68 Ill.App. 592; Moss v. Riddle, 5 Cranch [U. S.] 351; United States School-Furniture Co. v. School District, 56 Neb. 645; Johnston v. Milwaukee & Wyoming Investment Co., 49 Neb. 68; Hughes v. Insurance Co. of North America, 40 Neb. 627; Esterly Harvesting Machine Co. v. Frolky, 34 Neb. 110; Morrow v. Jones, 41 Neb. 867; Farmers & Merchants Bank of Elk Creek v. Farmers & Merchants Nat. Bank, 49 Neb. 379; Hay's Estate, 159 Pa. St. 381.)

Independent of their fraud, defendants Clark & Leonard Investment Company, Hare, and Tyler have elected to claim under the Clark mortgage, rather than under the Halter mortgage, and are bound by that election. (First Nat. Bank of Chadron v. McKinney, 47 Neb. 149; Sanger v. Wood, 3 Johns. Ch. [N. Y.] 416; National Bank of Illinois v. First Nat. Bank of Emporia, 57 Kan. 115; Terry v. Munger, 121 N.Y. 161; Lowenstein v. Glass, 48 La. Ann. 1422; Bach v. Tuch, 126 N.Y. 53; Bement v. Dow, 66 F. 185; Johnson v. Missouri P. R. Co., 52 Mo.App. 407; Robb v. Strong, 22 O. L. J. [U. S. C. C.] 338; Merchants Bank v. Thomas, 69 Tex. 237; Compton v. Beach, 62 Conn. 25; Bailey v. Hewey, 135 Mass. 172; Dyckman v. Sevatson, 39 Minn. 132; Geiber v. Littlefield, 23 N.Y.S. 869; Fowler v. Bowery Savings Bank, 113 N.Y. 450; Building & Loan Ass'n of Dakota v. Cameron, 48 Neb. 124; Yeomans v. Bell, 151 N.Y. 230; Strong v. Strong, 102 N.Y. 69; Pollock v. Smith, 49 Neb. 864; American Building & Loan Ass'n v. Rainbolt, 48 Neb. 434; Temple Nat. Bank v. Warner, 31 S.W. 239; Kingman v. Stoddard, 85 F. 740; O'Bryan v. Glenn, 91 Tenn. 106; White v. White, 107 Ala. 417; Moline Plow Co. v. Rodgers, 53 Kan. 743; Pensenneau v. Pensenneau, 22 Mo. 27; Lamon v. McKee, 7 Mackey [D. C.] 446; Trimble v. Doty, 16 O. St. 118; Seicroe v. Homan, 50 Neb. 601; Chicago Lumber Co. v. Anderson, 51 Neb. 159; Bohn Sash & Door Co. v. Case, 42 Neb. 281.)

The original Halter mortgage is subject to the mechanics' liens of these appellants, because the mortgagees were joint promoters with Halter of the building enterprise, and were in privity with him in the making of the contracts with these appellants. (Millsap v. Ball, 30 Neb. 728; Sheehy v. Fulton, 38 Neb. 691; Holmes v. Hutchins, 38 Neb. 601; Hoagland v. Lowe, 39 Neb. 397; Chappell v. Smith, 40 Neb. 579; Rogers v. Central Loan & Trust Co., 49 Neb. 677; Patrick Land Co. v. Leavenworth, 42 Neb. 715; Cummings v. Emslie, 49 Neb. 485; Kilpatrick v. Kansas City & B. R. Co., 38 Neb. 620.)

It is not essential that the original Halter mortgage should have been surrendered or released by the holders. Mere payment by money, or property, or exchange of securities, destroys the lien of a mortgage without a formal act. (Teaff v. Ross, 1 O. St. 469; Headlock v. Bullfinch, 31 Me. 246; Hodgman v. Hitchcock, 15 Vt. 374; Iowa County v. Foster, 49 Ia. 676; Joyner v. Stancill, 12 S.E. [N. Car.] 912; Jaffray v. Crane, 50 Wis. 349; McGiven v. Wheelock, 7 Barb. [N. Y.] 22.)

As bearing on the law justifying a finding that Folts was entitled to a lien, see: State Sash & Door Mfg. Co. v. Seminary, 47 N.W. 796 [Minn.]; Sprecht v. Sterens, 46 Neb. 874; Jeffersonville v. Riter, 37 N.E. 652 [Ind.].

References to sustain the claims of the architects for a lien: Albright v. Smith, 51 N.W. [S. Dak.] 590; Miller v. Batchelder, 117 Mass. 179.

John S. Kirkpatrick, for Forburger, Speidell & Co., appellants.

Reference: Pleasants v. Blodgett, 39 Neb. 741.

George E. Hibner, Davis & Hibner, John P. Maule, Thomas Darnall, John B. Cunningham, Lambertson & Hall, and E. H. Wooley, for other appellants.

S. L. Geisthardt, for Charles W. Hare and John J. Tyler, appellees:

The execution sale under the Tiernan judgment was valid and binding on appellants. (Harbeck v. Vanderbilt, 20 N.Y. 395; Anglo-American Land & Mortgage Co. v. Bush, 50 N.W. 1063 [Ia.]; Roberts v. Bruce, 15 S.W. 872; Ceburre v. Pearson, 50 N.Y.S. 112; Smith v. Foxworthy, 39 Neb. 214; Gulick v. Webb, 41 Neb. 706; Hopkins v. Ensign, 25 N.E. [N. Y.] 306; Neely v. McClure, 1 A. [Pa.] 719; Ritchie v. Judd, 27 N.E. 682 [Ill.]; Barling v. Peters, 25 N.E. 765 [Ill.]; Munson v. Magee, 47 N.Y.S. 942; Marie v. Garrison, 83 N.Y. 14; Dc Jarnette v. Verner, 19 P. 666 [Kan.]; Butler v. Fitzgerald, 43 Neb. 192.)

A judgment is a general lien and does not merge when the judgment creditor acquires title to the land. (Matless v. Sundin, 62 N.W. 662 [Ia.]; Caley v. Morgan, 16 N.E. 790 [Ind.]; Seaman v. Har, 24 P. 461 [Colo.]; Shotwell v. Murray, 1 Johns. Ch. [N. Y.] 512; Moore v. Smead, 62 N.W. 426 [Wis.]; Vaughn v. Comet Consolidated Mining Co., 39 P. 422 [Colo.]; Sellers v. Floyd, 52 P. 674 [Colo.]; Robinson Bank v. Miller, 38 N.E. 1078 [Ill.]; Boos v. Morgan, 30 N.E. 140 [Ind.]; Hanlon v. Doherty, 9 N.E. [Ind.] 782; Sutton v. Sutton, 1 S.E. [S. Car.] 19.)

Tyler and Hare were not parties to the agreement relating to the Tiernan sale, nor did they by their subsequent acts become such; and neither by any fraud of their own nor upon the doctrine of election have they lost their right to be restored to their lien under the Halter mortgage, if upon any ground the Tiernan sale should be held void. (City Bank v. Radtke, 54 N.W. 435 [Ia.]; Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207; Taylor v. Pumphrey, 32 S.W. 225; Floyd v. Patterson, 72 Tex. 207; Compton v. Ashley, 28 S.W. 224; Harris v. Warlick, 42 S.W. 356.)

It is the settled law of this state that a mortgagee under circumstances like those existing here is not a promoter of the building enterprise, and does not subject his security to mechanics' liens for work or materials which began to be furnished after the execution of the mortgage. (Henry & Goatsworth Co. v. Fisherdick, 37 Neb. 207; Holmes v. Hutchins, 38 Neb. 601; Hoagland v. Lowe, 39 Neb. 397; Chappell v. Smith, 40 Neb. 579; Patrick Land Co. v. Leavenworth, 42 Neb. 715; Rogers v. Central Loan & Trust Co., 49 Neb. 677.)

The several items enumerated in the mechanic's lien claim were furnished not under a single contract, but under separate and distinct contracts, and the court will not merge them into one, merely to donate to a party the benefit of a lien when he failed to exercise the necessary precautions and comply with the statutory requirements for securing one. (Central Loan & Trust Co. v. O'Sullivan, 44 Neb. 834; Hansen v. Kinney, 46 Neb. 207; Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207; Buchanan v. Selden, 43 Neb. 559.)

The evidence does not warrant the court in allowing anything for making plans, specifications, and details, because the value of the claimants' services under that item is not shown. (Mitchell v. Packard, 47 N.E. 113 [Mass.].)

An architect is not entitled to a mechanic's lien for making plans, specifications, details, and perspectives, unless these in some way are combined with superintendence or other actual labor furnished to the building. (Fiske v. School District, 58 Neb. 163; Mitchel v. Packard, 47 N.E. 113 [Mass.]; Rinn v. Electric Power Co., 38 N.Y.S. 345; Foster v. Tierney, 59 N.W. 56 [Ia.].)

The affidavit to a mechanic's lien must be properly authenticated. (Byrd v. Cochran, 39 Neb. 109; Pitts v. Seavey, 55 N.W. 480 [Ia.]; Colman v. Goodnow, 29 N.W. 338 [Minn.]; Hill v. Alliance Building Co., 60 N.W. [S. Dak.] 752.)

Billingsley & Greene, John L. Doty, Reese, Gilkeson, Comstock & Reese, M. L. Easterday, Lamb & Adams, Abbott, Selleck & Lane, Stevens & Cochran, Fritz Westermann, and Webster, Rose & Fisherdick, for other appellees.

OPINION

The opinion contains a statement of the case.

SULLIVAN, J.

This action, which was brought by Henry & Coatsworth Company to foreclose a mechanic's lien, resulted in a decree, from which a number of lien claimants, who were parties defendant have appealed. The pleadings and evidence are voluminous, but we believe the following statement of facts will sufficiently develop the main questions presented for decision: Alexis Halter, being the owner of three business lots in the city of Lincoln, decided to erect...