Kiene v. Hodge

• Decision Date: 01 February 1894
• Citation: 90 Iowa 212,57 N.W. 717
• Parties: KIENE ET AL. v. HODGE ET AL.
• Court: Iowa Supreme Court

90 Iowa 212

57 N.W. 717

KIENE ET AL.

v.HODGE ET AL.

Supreme Court of Iowa.

Feb. 1, 1894.

Appeal from district court, Dubuque county; D. J. Lenehan, Judge.

O. F. Hodge is the owner of certain lots and parts of lots in block 20 in the Dubuque Harbor Improvement's addition to the city of Dubuque, Iowa, and, on the 2d day of June, 1890, he gave to the plaintiffs a mortgage on said lots to secure the sum of $8,000, said mortgage being filed for record on the 18th day of July, 1890. The Standard Lumber Company and Knapp, Stout & Co. are defendants, and each files an answer and cross petition, and each claims a mechanic's lien on the lots and improvements thereon prior to plaintiffs' mortgage, and, as between themselves, they contest as to the priority of their respective mechanics' liens. The district court gave judgment for each against Hodge, and decreeing foreclosure of the respective liens in amounts and with priorities as follows: First, plaintiffs' mortgage, $9,162.25; second, the Standard Lumber Company's, $1,107.02; and, third, the Knapp, Stout & Co.'s, $596.50. The Standard Lumber Company and Knapp, Stout & Co. each appealed.Henderson, Hurd, Daniels & Kiesel, for appellant Knapp, Stout & Co.

Longueville & McCarthy, for appellant Standard Lumber Co.

Powers, Lacy & Brown, for appellees.

GRANGER, C. J.

1. The lots on which the respective liens are claimed were purchased of Hon. J. H. Shields, through Peter Kiene, Jr., who took and held the title for Hodge till April 8, 1888, when he conveyed the same to Hodge. At the time Hodge took the title he gave J. R. Vogel a mortgage for $1,500, the loan being obtained through Peter Kiene & Son, as agents, which remained till June 2, 1890, when the mortgage in suit was given to the plaintiffs, through Peter Kiene & Son as agents, the $1,500 mortgage being included therein. The $8,000 loan by plaintiffs was for the purpose of erecting a building on the lots, and it was so used. On the 26th day of August, 1890, Hodge made a contract with one Spaulding to furnish and drive the piling for the building, and the work was commenced in a few days thereafter. The stakes to indicate the lines of the property, with a view to definitely locate the building, were set by the engineer in August or September, 1890. The plans for the building were commenced by the architect the latter part of August, 1890. No materials for the building were furnished before October, 1890. These lots are what are called “water lots.” They are in what was a slough of the Mississippi river, and were covered with stagnant water. While Peter Kiene, Jr., held the title to these lots for Hodge, he received notice from the city to fill them, to abate the nuisance. He notified Hodge, as the real party in interest, and for something over a year before the driving of the piling was commenced the work of filling these lots was going on. The deed from Shields to Kiene, in trust for Hodge, was made December 17, 1886, and from that time forward Kiene was the agent for Hodge for the sale of the lots up to the execution of the $8,000 mortgage, or about that time. There seems to have been no definite purpose to build on the lots till about May 1, 1890. At that time the filling was well advanced, if not nearly complete. It may be said as a fact scarcely open to dispute that the filling was commenced and carried forward without reference to the fact of building; that is, the filling would have been done without any purpose to build. Mr. Hodge, as a witness, said: “I bought these lots in case I might need them, or sell them, or anything of that kind; the same as anybody buys lots.” The filling was to a greater height than was necessary to abate the nuisance on account of the stagnant water. It is stated by one witness, who was the person placed on the lots to receive and spread the material used as filling, that the water was eight or nine feet deep, and the “fill went above twelve feet on an average.” At the same time that these water lots were being filled other water lots in the locality was also being...