Kirkwood v. Hoxie

• Decision Date: 10 March 1893
• Citation: 95 Mich. 62,54 N.W. 720
• Court: Michigan Supreme Court
• Parties: KIRKWOOD v. HOXIE et al.

54 N.W. 720

95 Mich. 62

KIRKWOOD v. HOXIE et al.

Supreme Court of Michigan

March 10, 1893

Appeal from circuit court, Gogebic county, in chancery; Norman W Haire, Judge.

Action by Philip B. Kirkwood against John C. Hoxie and another to remove cloud on title from certain land. Judgment for defendants. Complainant appeals. Affirmed.

E. E. Osborn, for appellant.

C. F Button, for appellees.

HOOKER C.J.

The complainant purchased the premises in controversy at administrator's sale, taking the usual administrator's deed. The license from the probate court upon which the sale was made directed that the property be sold "subject to all incumbrances, by mortgage or otherwise, existing at the time of the death of the intestate," John T. Atkinson. The report of sale shows that the complainant bought the property on September 10 1889, for $25, "subject to all liens and incumbrances." At this time the defendants claimed to have a lien upon the premises, and the inference from the proof is strong that both complainant and the administrator as well as the defendants, who were present, understood that the sale was subject to this lien; the same, with other incumbrances, amounting to the value of the land, viz. about $3,800. The history of this lien is substantially as follows: The defendants furnished a quantity of building material for a store which was erected upon the premises, beginning in September, 1887, under a contract between themselves and Atkinson. On January 6, 1888, they filed a notice of lien in conformity to that prescribed by the lien law of 1887. Sess. Laws 1887, p. 363. This was followed by proceedings under the same act which on November 13, 1888, culminated in a judgment in favor of these defendants, against John T. Atkinson, for the sum of $1,050 and costs, to which judgment was appended the following, viz.: "And, by consent of parties in open court, it is ordered that the execution be stayed in this cause, without a bond, until the first day of the next term of court, and that the amount of this judgment is a lien upon the property." The costs were subsequently taxed at the sum of $73. Soon after this, Atkinson, the judgment debtor, died. Complainant, having purchased the premises, as already stated, went into possession under his deed in November, 1889, and learning that the lien law of 1887 had been declared unconstitutional, on January 3, 1890, filed the bill in this cause to remove the cloud occasioned by this alleged lien. On July 3, 1890, defendants filed a new statement of their liens, in accordance with the law of 1885, and on September 1, 1890, they assigned their interest in the lien and debt to the National Bank of Oshkosh.

The decision of this court in the case of Spry Lumber Co. v. Sault Sav. Bank, Loan & Trust Co., 77 Mich. 202, 43 N.W. 778, not only declared the lien law of 1887 unconstitutional, but stated that such statute, and "all of its parts, must fall together, leaving the law of the state where it was before the law of 1887 was passed." This decision leaves defendants' lien to rest upon the law of 1885. By the terms of that act the lien attaches to the land when the vendor furnishes material for a structure to be erected thereon under a contract with the owner. Sess. Laws 1885, pp. 293, 295, �� 2, 3. In this particular it differs from other lien laws, and notably that of 1889, (3 How. St. � 8398c,) which provides that "a lien shall not attach unless a notice is filed with the register of deeds within sixty days," etc. The object of the legislature in passing the law of 1885 appears to have been to create a subsisting lien independent of the notice and proceedings to enforce it. They do not seem to be necessary to its existence, and only affect it when the interests of bona fide purchasers, etc., are involved. It would seem to follow that the defendants acquired a vested interest, in the nature of a mortgage or security, upon this land, of which they could not be deprived by a failure to file a statement of their claim in accordance with the law of 1885. Nor could the lien be lost by the change made by the law of 1889, the right being vested under the law of 1885.

We may next inquire whether this lien has been lost by any act of the defendants. Previous to the passage of the act of 1887 the authority to enforce these liens had been vested in courts of chancery. An attempt was made by the act of 1887 to give this power to a court of law, by authorizing the court in an action upon the contract, to declare the judgment a lien upon, and enforce it against, the land. Defendants accordingly began an action and took a judgment against Atkinson, claiming a lien upon the premises, which, as already appears, the parties agreed should be a lien. Defendants contend that this is a valid judgment, to the extent of establishing their lien, while complainant contends that it is a valid judgment, but only to the extent of making defendants...