Johnson v. Company

Decision Date01 December 1898
Docket Number393. [*]
Citation55 P. 517,8 Kan.App. 580
PartiesCORA L. JOHNSON v. THE BADGER LUMBER COMPANY et al
CourtKansas Court of Appeals

Opinion Filed December 21, 1898.

Error from Cowley district court; A. M. JACKSON, judge. Reversed.

Judgment reversed and cause remanded.

F. C Johnson, and McDermott & Johnson, for plaintiff in error.

Pollock & Lafferty, Madden & Buckman, C. I. Forsyth, C. W Roberts, and Smith & Cogdal, for all defendants in error except G. W. Stokes.

OPINION

MILTON, J.:

This action was brought by the Badger Lumber Company to foreclose a mechanic's lien for building material furnished to J. B. Bryan under a contract made in December, 1891, to be used in the erection of a dwelling-house on a lot in the city of Winfield. Eighteen holders of mechanics' liens were made defendants, together with J. B. Bryan and Mattie Bryan, his wife, Cora L. Johnson, now plaintiff in error, and Mahlon E. Johnson, her husband. The petition alleged that the contract was made with J. B. Bryan, the owner of the lot. In their joint answer and cross-petition, Cora L. Johnson and Mahlon E. Johnson averred that in August, 1891, Cora L. Johnson, then and ever since the legal owner of the lot in question, entered into a written contract with J. B. Bryan for the sale and conveyance of the lot to the latter upon the performance of certain conditions on his part; and that he had wholly failed to perform the conditions of the contract, a copy of which was annexed to the cross-petition, and was not entitled to a conveyance of the legal title to the property.

The defendant lien-holders answered severally, and averred that they had entered into contracts with J. B. Bryan, who was the equitable owner of the lot, and the agent of Cora L. Johnson, the legal owner of the property, to furnish materials or labor for the construction of the dwelling-house. They also answered the cross-petition of the Johnsons, denying all the averments thereof except that relating to the agreement to convey the premises to Bryan. The Johnsons replied to each of the cross-petitions of the defendant lien-holders, and denied under oath the allegation therein as to the agency of Bryan. The plaintiff filed a single unverified reply to all of the cross-petitions, denying the averments thereof. The record consists of the pleadings, the journal entry of judgment, the motion for a new trial and the order overruling the same, and does not contain the evidence introduced on the trial. As a part of its judgment, the court found as follows:

"That the legal title to the real estate set out in plaintiff's petition herein and in the answers and cross-petitions of all the defendants herein . . . was at all times since the filing of the mechanics' liens in this case, and is now, in the defendant Cora L. Johnson, and that the equitable title to said real estate is in the defendant J. B. Bryan, and was at all times hereinafter mentioned."

Other findings were to the effect that the plaintiff and each of the lien claimants had entered into separate contracts with J. B. Bryan for furnishing materials or labor to be used in and about the erection of the dwelling-house hereinbefore mentioned. The court also found that Cora L. Johnson was entitled to a lien on the real estate in the sum of $ 500 and interest, for unpaid purchase-money, and that her lien was subject and inferior to the liens declared in favor of the other parties to the action. The judgment ordered the sale of the...

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