Lewis Mfg. Co. v. Lee

• Decision Date: 18 September 1934
• Docket Number: No. 90.,90.
• Citation: 268 Mich. 383,256 N.W. 457
• Parties: LEWIS MFG. CO. v. LEE et al.
• Court: Michigan Supreme Court

268 Mich. 383

256 N.W. 457

LEWIS MFG. CO.

v.LEE et al.

No. 90.

Supreme Court of Michigan.

Sept. 18, 1934.

Appeal from Circuit Court, Oakland County, in Chancery; Glenn C. Gillespie, Judge.

Suit by the Lewis Manufacturing Company against Charles W. Lee, as receiver of the First State Savings Bank, of Birmingham, and others, in which the named defendant filed a cross-bill. From an adverse decree, the named defendant appeals.

Reversed, and bill dismissed.

Argued before the Entire Bench.

Goodloe H. Rogers, of Pontiac, for appellant Charles W. Lee, receiver for First State Sav. Bank of Birmingham, Mich.

Pelton & McGee, of Pontiac, for appellee.

WIEST, Justice.

December 10, 1930, George W. Smith was vendee in a land contract covering forty-five lots in a subdivision. That day, and without the legal title, he commenced erection of a dwelling house on the of the lots and, January 28, 1931, entered into contract with plaintiff for material. December 26, 1930, the vendors in the land contract executed a deed to George W. Smith and left it in escrow at a bank, pending financial arrangements which evidently were not completed until February 5, 1931, when Mr. and Mrs. Smith gave a mortgage to defendant First State Savings Bank of Birmingham for $10,000, and February 6, 1931, when they gave a second mortgage to the land contract vendors. In the meantime, however, and on January 6, 1931, Mr. Smith, by quitclaim deed, conveyed the premises to his secretary and she, on the same day, by like deed, conveyed to Mr. and Mrs. Smith. The mentioned deeds and mortgages were not recorded until about the middle of March, 1931. January 28, 1931, Mr. Smith, individually, contracted with plaintiff for building material and, between that date and June 29, 1931, material was furnished. August 22, 1931, plaintiff filed a claim of lien on the building and land for material furnished between April 15 and June 29, 1931, under contract with George W. Smith, owner, and made service upon Mr. Smith August 18, 1932.

The bill herein was filed to foreclose the lien. Defendant Charles W. Lee, receiver of the First State Savings Bank of Birmingham, appeared and, by answer, averred priority of the mortgage, and, by cross-bill, asked affirmative relief and now reviews adverse decision and decree by appeal. The other defendants, inclusive of Mrs. Smith, have not appealed.

At the hearing, plaintiff was permitted to amend the bill by averring the furnishing of material from January 28 to June 29, 1931. The fact is not disputed, but it is contended that dates in the claim of lien cannot be varied.

In John F. Noud & Co. v. Stedman, 193 Mich. 459, 160 N. W. 547, we held:

‘The last date is the more important of the two, because from the last one it is determined whether the claim for a lien was filed within the statutory period of 60 days. Where the last date is stated definitely, we do not think the claim should be declared fatally defective because the first date is stated too generally.’

The claim of lien was timely filed and the mistake mentioned did not defeat the lien, but only had bearing upon the subject of priority of the bank mortgage.

When Mr. Smith commenced the building, he had no legal title to the lot and the court limited the lien and foreclosure thereof to the building under section 13103, Compiled Laws 1929. If the lien was valid upon the building and not as well upon the lot, no one...