Jewett v. Iowa Land Co., s. 10,041 - (129).

• Decision Date: 29 May 1896
• Docket Number: Nos. 10,041 - (129).,s. 10,041 - (129).
• Parties: WILLIAM P. JEWETT, Assignee, v. IOWA LAND COMPANY and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

64 Minn. 531

WILLIAM P. JEWETT, Assignee, v. IOWA LAND COMPANY and Others.¹

Nos. 10,041 - (129).

Supreme Court of Minnesota.

May 29, 1896.

Appeal by plaintiff from a judgment of the district court for Washington county, in favor of defendants, entered in pursuance of the findings and order of Williston, J. Reversed.

Flandrau, Squires & Cutcheon, for appellant.

Stevens, O'Brien, Cole & Albrecht and Harvey Officer, for respondents.

BUCK, J.

The plaintiff herein is the assignee of the Elmo Park Company, and is in possession of, and claiming title to, 740.33 acres of land situate in Washington county, in this state, and this action is brought to determine the adverse claims of the defendants.

The Iowa Land Company, defendant, claims title through the foreclosure of a certain mortgage executed by the Elmo Park Company to the St. Paul Trust Company, trustee of said land company, defendant, covering the said 740.33 acres. Subsequent to the execution and recording of the mortgage, the defendant Grant, under a contract with the Elmo Park Company, constructed three buildings on a certain 40 acres included in the mortgage, and thereafter filed three separate mechanic's liens on the three buildings, respectively, but each lien embraced the same 40 acres. Thereafter Grant brought three separate actions in the district court of Washington county, to enforce these liens against the Elmo Park Company and the St. Paul Trust Company, as defendants, claiming that he was entitled to liens prior to said mortgage upon the buildings, respectively, and to a lien upon the 40 acres. The complaints in these actions did not describe or refer to any part of the 740.33 acres except the 40 acres covered by the mechanic's liens. The Elmo Park Company did not appear in either of these lien actions, or take part in the proceedings therein.

The St. Paul Trust Company appeared therein, and filed its answers to the several suits in the office of the clerk of the court of Washington county, and at the same time filed three notices of lis pendens in the office of the register of deeds of said county. These answers were never served upon the Elmo Park Company, unless such filing of them with the clerk constituted service. In these answers, the St. Paul Trust Company claimed a prior lien to the said mechanic's liens, and also that default had been made in the payment of the sum secured by said mortgage; and it demanded judgment for the amount due on said mortgage debt, and for a foreclosure of said mortgage and a sale of the whole 740.33 acres, and for a personal judgment against the Elmo Park Company for any deficiency. It does not appear that the Elmo Park Company ever had any notice of the contents of these answers. Subsequently, these three actions were consolidated and tried as one action, and a judgment entered² thereon adjudging the mechanic's liens as to the buildings to be prior liens to said mortgage, and directing a sale of the buildings to satisfy the respective mechanic's liens, and also adjudging the amount due on said mortgage, and also directing a sale of the 740.33 acres, and the entry of a personal judgment against the Elmo Park Company for any deficiency after the application of the proceeds of such sale to the mortgage debt.

On August 19, 1892, the attorney for the St. Paul Trust Company made affidavits setting forth that said Elmo Park Company asserted that said judgment was not binding and valid as a foreclosure of said mortgage; and upon the same the court made an order, which was served upon the Elmo Park Company, to show cause why said judgment should not be and remain in full force and effect as against all of said real estate, and why said district court did not have full power and authority to order and direct the sale of all of said real estate described in said mortgage. The Elmo Park Company did not appear or make any answer to the order to show cause. On the return day of the order, the district court made a further order, adjudging that said judgment should stand without modification, and that the whole of said real estate should be sold as therein ordered.

Subsequently, the whole 740.33 acres was sold under said judgment to the Iowa Land Company, and a deficiency judgment for a large amount was entered and docketed against the Elmo Park Company. This action was brought before the time for redemption expired under said sale. The 40-acre tract described in the lien actions is entirely surrounded by other land described in the mortgage or trust deed, but this mortgage or trust deed also described and covered other independent and distinct tracts of land not connected or used with the 40-acre tract, and leased by the Elmo Park Company to other persons, and by them, at the time of the commencement of the three lien actions, used, and since that time by them used and cultivated, as farm lands.

The important question to be determined is whether a mortgage covering several separate and distinct tracts of land can be foreclosed as to all of the mortgaged property, where a mechanic's lien holder brings an action to foreclose his lien upon one of these separate tracts, asking no other relief in his complaint, and makes the mortgagor a party to such action, and where such mortgagor does not appear, but the mortgagee does appear, and files an answer in the office of the clerk of the district court, as provided in G. S. 1894, § 6238, relative to the enforcement of mechanic's liens, and in such answer prays for a foreclosure of the mortgage upon all of the premises described in the complaint; the mortgagor having no actual notice of the relief demanded in the complaint, and no constructive notice unless such filing so operates.

If the question was merely whether a mortgagee of the premises upon which the mechanic's lien is claimed can be made a party, for the purpose of having the existence, date, and amount of his mortgage lien determined in the lien action, it would be concluded by the decision of this court in Finlayson v. Crooks, 47 Minn. 74, 49 N. W. 398, 645. In the discussion of this question, it would be well to bear in mind the fact that the lien of mechanics and material men on buildings and the land upon which they are erected, as security for the value of services performed and materials furnished, is purely the "creation of statute." It was entirely unknown at common law or equity. Phillips, Mech. Liens, § 1. The rule of procedure for enforcement of mechanic's liens is to a great extent defined by the statute. The complaint is to be filed in the office of the clerk of the district court at the time of issuing the summons, which shall notify the defendant that the complaint has been filed, and that the action is for the foreclosure of a mechanic's lien. To this complaint the plaintiff must attach a bill of particulars of the items of the lien-claim. All parties who have mechanic's liens filed of record upon the same property, or any part thereof, shall be made defendants. The complaint must require an adjudication and foreclosure of the amount and validity of the lien-claim.

It may not be successfully asserted that, when these statutory proceedings to enforce the foreclosure of mechanic's liens have once been properly started in motion, any rules applicable to the usual course of law or equity cannot be invoked to aid in their successful final determination. But, because the court has judicial power to start the proceedings in motion, it does not necessarily follow that it has jurisdiction to draw into that proceeding a right to adjudicate upon the question of mortgage liens upon other separate and distinct pieces of land, not covered by the mechanic's lien-claim, and especially not described in the complaint, nor embraced within the relief therein demanded. The owner of the premises may properly be made a party, in order to have his interest in the premises adjudicated. But the plaintiff in such action has no right to bring in the owner of the premises, and invoke the jurisdiction of the court in respect to any other tract of land than the one affected by the mechanic's lien. When the complaint in this action was filed, and the Elmo Park Company served with notice to appear and answer, it related only to the 40-acre tract described in the complaint. The premises therein described were the subject-matter concerning which the action was brought, and upon which the plaintiff's lien-claim was to be determined; and as to such matters, including other liens or rights in the particular 40 acres described, the court acquired jurisdiction, because that was the subject-matter for judicial decision, and...