Meyer Bros. Drug Co. v. Brown & Co.

• Decision Date: 06 June 1891
• Citation: 46 Kan. 543,26 P. 1019
• Parties: MEYER BROS. DRUG CO. v. BROWN et al.
• Court: Kansas Supreme Court

26 P. 1019

46 Kan. 543

MEYER BROS. DRUG CO. v. BROWN et al.

Supreme Court of Kansas

June 6, 1891

Syllabus

1. A person in possession of real estate under a verbal agreement to convey the fee-simple title to him is an owner thereof within the meaning of our statute relating to material-men’s liens, and may subject his interest therein to such a lien.

2. Where a person in possession contracts for material for the erection of a building upon the premises, and a portion of the material has been furnished and the construction of the building begun, and afterwards pursuant to said agreement, the full title is conveyed to him, held, that the lien for the material so contracted, if filed in time, is prior to mortgage liens obtained subsequent thereto.

Commissioners’ decision. Error from district court, Woodson county; L STILLWELL, Judge.

W. H Slavens, for plaintiff in error.

M. C. Smith and J. B. Larimer, for defendants in error.

OPINION

STRANG, C.

This was an action to determine the priority of certain liens between the parties thereto. It was tried by the court June 12, 1888, on the following agreed statement of facts: "S. A. Brown & Co. entered into a contract with D. A. Wilson, defendant, in December, 1886, to furnish lumber and materials to erect a building on lots 1, 2, and 3, block 7, Yates’ fourth addition to the city of Yates Center, Kan. At the date of said contract G. H. Phillips held the legal title to said lots, which were at that time unimproved, but there was an agreement between said Phillips and D. A. Wilson by which said Phillips was to convey said lots to D. A. Wilson. That on January 1, 1887, G. H. Phillips and wife conveyed said lots to said D. A. Wilson by warranty deed, and that on January 6, 1887, said D. A. Wilson and wife executed and delivered to Scott & Brier, defendants herein, a mortgage on said lots to secure the payment of $550, for the purpose of obtaining money to pay for the lumber and materials to erect a dwelling on said lots. S. A. Brown & Co. had, prior to January 1st, furnished a portion of said lumber and work and commenced on said house, and balance of said lumber was furnished at different times subsequent to January 1, 1887, and the house was completed some months afterwards; and that within four months after the completion of said building the mechanic’s lien statement of S. A. Brown & Co. was properly filed in the district clerk’s office. That to secure a part of the purchase money said D. A. Wilson and wife executed and delivered to said G. H. Phillips on January 6, 1887, a mortgage of $150, which was afterwards transferred to the Meyer Bros. Drug Company, one of the defendants. That said mortgage was made subsequent to said mortgage of said Scott & Brier. That said Phillips had knowledge that said mortgage of Scott & Brier was executed to obtain money for the erection of said building, and that said Phillips sold the lots with the understanding that a building was to be erected thereon. Some time in December, 1886, said Phillips by contract with Wilson agreed to sell to him the lots in question for $100, to be paid January 1, 1887, time on balance, but length of time not mentioned. Wilson commenced to build, but without any understanding with Phillips that any one should acquire any lien prior to his, (Phillips’.) When Phillips gave a deed it was with the understanding with Wilson that there should be no liens except Scott & Brier’s mortgage ahead of his mortgage, which was for part purchase money, and Phillips never had any talk or understanding with Brown & Co. about the matter. That Brown & Co. had no knowledge of the talk between Phillips and Wilson in regard to liens or mortgages aforesaid."

On said statement of facts the court found that S. A. Brown & Co. were entitled to a first lien upon the premises for the amount of their claim, $120.46; that Moses Clark, assignee of the defendants Scott & Brier, was entitled to a second lien on the premises for the amount of his claim, $648.25; and that the plaintiff in error, the Meyer Bros. Drug Company assignee of G. H. Phillips, was entitled to a third lien upon the premises for $176. Meyer Bros. objected to the judgment of the court, and bring the case here for review, and say they should have been given a second lien upon the premises, it being conceded by the plaintiff in error that Scott & Brier should have the first lien thereon, and that the lien of S. A. Brown & Co. should have been postponed to both the lien of Scott & Brier and their own. The agreed statement of facts, which contains all the evidence in the case, shows that in December, 1886, G. H. Phillips was the owner of the lots described in the petition of the plaintiff below, and that some time during that month he verbally promised to...