Murray v. Bender

• Decision Date: 16 May 1901
• Docket Number: 618.
• Citation: 109 F. 585
• Parties: MURRAY et. at. v. BENDER.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F. 585

MURRAY et. at. v. BENDER.

No. 618.

United States Court of Appeals, Ninth Circuit.

May 16, 1901

McHatton & Cotter, for appellants.

John F Forbis, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The facts of this case are somewhat complicated, and a clear statement of them is essential to the proper understanding and determination of it. In the year 1888 the Grand Opera-House Company was the owner of certain real property in Butte City, Mont., which on the 29th day of September, 1888 it conveyed to John Maguire; taking his note for $17,000, the purchase price, secured by a mortgage upon the property. Maguire thereupon began the construction of an opera house upon the ground, in the construction of which he became indebted to various parties for labor and material performed and used in and about the erection of the building. For the indebtedness the claimants filed liens against the building in accordance with the provisions of a state statute. Subsequently an action was brought by the lien claimants against Maguire in one of the courts of the state to foreclose them, in which action a decree of foreclosure was entered on the 27th day of January, 1890, under which decree the property was sold on the 19th day of May, 1890, to William R. Kenyon. There were several other judgments against Maguire, all of which were liens upon the property,-- one in favor of Edward King, which was assigned to James A. Murray one in favor of the First National Bank of Butte; and another in favor of the Butte Hardware Company which latter judgment was also assigned to Murray. Under his assignment of the King judgment Murray redeemed from the sale under the foreclosure of the mechanics' liens, and the First National Bank then redeemed from Murray, and Murray again redeemed,-- this time from the bank,-- and on April 10 1891, received a sheriff's deed for the premises. Murray thereby became substituted to Maguire's rights in the property, which, however, remained subject to the mortgage theretofore executed by Maguire to the Opera-House Company for the purchase price of the land upon which the building was erected. After the completion of the building, and during the existence of the mechanics' liens, and before Murray had received the sheriff's deed under and by virtue of the proceedings in the suit for the foreclosure of those liens, Maguire purchased the chairs, scenery, and other furniture for the opera house, which constitute the subject-matter of the present suit, and to pay for it borrowed the money of one John O'Rourke, giving him as security for the money so borrowed a chattel mortgage thereon, which was duly verified and recorded, and which seems to have been extended from time to time until Murray, in the year 1893, advanced to Maguire the money necessary to pay O'Rourke, taking from Maguire a transfer of the chairs, scenery, and other furniture. Prior to the last-mentioned transactions, and on the 29th day of May, 1891, the Grand Opera-House Company brought suit in one of the district courts of the state to foreclose the mortgage executed to it by Maguire in 1888. To that suit Murray was, among others, made a party defendant, upon the ground, as alleged in the complaint, that those defendants claimed some lien or interest in the property, all of which it was averred were subject to the complainant's rights. The complainant in that suit also asked that all of the defendants be required to set up any lien or claim they had. Murray appeared, and by answer set up the various mechanics' and other liens, the decree rendered thereon, the redemptions had thereunder, and his right under the sheriff's deed executed to him on the 10th day of April, 1891. That action was tried and a decree rendered therein on the 12th day of March, 1895, from which an appeal was taken to the supreme court of the state, and is reported in 14 Mont. 558, 37 P. 607. The result of that litigation was a judgment that Murray was the owner of the building, with the right to remove the same from the land upon which it was erected at any time prior to the expiration of the period of redemption from the sale under the Grand Opera-House Company's mortgage, and that the mortgage of the Opera-House Company was a superior lien upon the land itself. Under that decree the land was sold on the 18th day of April, 1896, to the Grand Opera-House Company. The right to redeem from that sale continued for six months thereafter. Before the expiration of those six months Murray began to exercise the right given him by the above-mentioned decree, by removing from the opera house the chairs, scenery, and other furniture, and to tear down the building itself. Prior to that, and during the pendency of the foreclosure suit of the Grand Opera-House Company against Maguire, to wit, in the year 1894, Murray undertook to remove from the building...