Kay v. Towsley
| Decision Date | 28 May 1897 |
| Court | Michigan Supreme Court |
| Parties | KAY v. TOWSLEY ET AL. |
Appeal from circuit court, Shiawassee county, in chancery; Stearns F. Smith, Judge.
Bill by Richard F. Kay against Matthew P. Towsley, Ephraim C. Wagar Benjamin B. Crapo, and others to foreclose a deed as a mortgage; and by Ephraim C. Wagar and Benjamin B. Crapo against Richard F. Kay and others to foreclose a mechanic's lien. The cases were consolidated and tried together, and, from a decree adjudging the mortgage lien paramount to the mechanic's lien, said Wagar and Crapo appeal. Reversed.
F. S Porter, for appellants.
John T McCurdy, for appellee.
On or about May 15, 1895, the defendants Matthew P. Towsley and Charles A. Jason, being the owners in fee simple of certain lands in the village of Shaftsburg Shiawassee county, commenced the erection of an hotel building thereon. On May 29th, when the foundation wall of said building was completed, they arranged with complainant Kay, for a loan of $300, and on the same day, for the purpose of securing payment thereof, executed to him a deed of said lands, absolute in form, and thereupon took back a land contract from him, providing for his redeeding said lands to them upon the payment of said sum. This sum was advanced to them by complainant as follows: $75 on that date, $125 on June 6th, and $100 on June 15th. On June 25th, Kay loaned them $50 more. The deed was recorded June 3, 1895. The land contract was not recorded. Towsley and Jason continued in possession of the premises, and completed the erection of the building. On June 25, 1895, Wagar and Crapo commenced furnishing materials to Towsley and Jason for the erection of the building, and from that date to August 17th of the same year, inclusive, furnished them with materials to the sum of $234.31, which materials, it is conceded, were used by Towsley and Jason in the construction of the building. On October 15, 1895, Wagar and Crapo filed a noticed of their intention to claim a lien on said premises, in the office of the register of deeds for Shiawassee county. On November 9, 1895, Kay filed his bill in the circuit court for the county of Shiawassee, in chancery, to foreclose said deed as a mortgage. Afterwards, and in due time, Wager and Crapo filed their bill in said court to enforce a mechanic's lien upon said premises. The two suits were consolidated by stipulation, and heard as one suit. On the hearing the court decreed Kay a first lien under his mortgage on said premises, and defendants Wagar and Crapo a lien thereon to the amount of their claim, subject to said mortgage. Wagar and Crapo appeal. They claim they are entitled to a lien on said premises paramount to that of complainant's (Kay's) mortgage, for the reason that said mortgage was executed subsequent to the commencement of the erection of said hotel building. Subdivision 3, � 9, Act 179, Pub. Acts 1891, as amended by Act 199, Pub. Acts 1893, provides that mechanics' liens "shall be preferred to all other titles, liens or encumbrances which may attach to or upon such building, machinery,...
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