Miller Lumber Co. v. Wilson

• Decision Date: 18 June 1892
• Citation: 19 S.W. 974,56 Ark. 380
• Parties: MILLER LUMBER CO. v. WILSON
• Court: Arkansas Supreme Court

19 S.W. 974

56 Ark. 380

MILLER LUMBER CO. v. WILSON

Supreme Court of Arkansas

June 18, 1892

APPEAL from Miller Circuit Court.

CHARLES E. MITCHEL, Judge.

Judgment reversed and cause remanded.

L. A Byrne for appellant.

Frunk had no interest in the land and had no authority to charge it with a mechanic's lien. 25 Ark. 490; Mansf. Dig. secs 4406-7. It was error to give the last clause of the second instruction.

OPINION

HUGHES, J.

The appellee sought to enforce a mechanic's lien upon buildings which he had erected upon land owned at the time of their erection by W. L. Whittaker, who sold the lands afterwards to Jones, Law & McKee, who sold the same to the appellant.

The contracts for the erection of the buildings were made with one Frunk, who was at the time erecting a saw mill upon the land, and was supposed to be the owner of it. There is no evidence that Frunk owned any interest whatever in the land or that Whittaker, the owner, knew of the contracts for the buildings or the fact that they were being, or had been, erected till after they were erected. Some evidence was introduced on the trial to show that Whittaker had stated in the presence of a witness that he had sold the land to Frunk, but there was no evidence that it was known to Wilson, the appellee, that Whittaker had ever said this, or that this statement of Whittaker influenced Wilson to believe that Frunk owned the land, or that he gave credit to Frunk on the faith of the statement.

At the plaintiffs request, over the objection of the appellant, the court gave instructions two and three, which are as follows:

"2nd. If you find from the evidence that, at the time plaintiff did the work arid labor sued for herein, the defendant Augustus Frunk was and had been for some time in possession of the lands built upon as the owner or proprietor thereof, and that W. L. Whittaker, from whom defendant purchased, stated that he had sold said land to defendant Frunk, then is W. L Whittaker estopped from denying ownership in defendant, so far as the lien in this case it concerned.

"3rd. If you find that Augustus Frunk was lawfully in possession of the land in controversy in this suit and upon which the buildings were erected, and that he was exercising control of the same, and that while Frunk was in possession he contracted with Wilson for the work for which this suit is brought, then is Frunk the proprietor of said land, within the...