Nelson v. Bailey
| Decision Date | 30 April 1959 |
| Docket Number | No. 34837,34837 |
| Citation | 54 Wn.2d 161,338 P.2d 757 |
| Parties | , 73 A.L.R.2d 1400 Jack N. NELSON, Appellant, v. Richard E. BAILEY et al., Defendants, R. E. Shaw, doing business as Seahurst Lumber Company, Respondent and Cross-Appellant (two cases). R. E. SHAW, doing business as Seahurst Lumber Company, Respondent, v. R. E. BAILEY et al., Defendants, Jack N. Nelson, Appellant. Ernest JONSON, Receiver of Western Mortgage Company, Appellant, v. Richard E. BAILEY et al., Defendants, George T. Mood and Ruth Mood, his wife, et al., and R. E. Shaw, doing business as Seahurst Lumber Company, Respondents. |
| Court | Washington Supreme Court |
Skeel, McKelvy, Henke, Evenson & Uhlmann, Miracle, Treadwell & Pruzan, and Jerome Shulkin, Seattle, for appellants Nelson and Jonson.
Donald K. Fleck, Seattle, for respondent R. E. Shaw, d. b. a. Seahurst Lumber Co.
Gould & Ackley, Seattle, for respondents Mood.
Questions of law only are presented on this appeal; the facts are not in dispute. The actions, consolidated for trial, were brought to foreclose mortgages and other liens against two dwelling-house properties situated in King county. The appellants are Jack N. Nelson, the assignee of one of the mortgages, and Ernest Jonson, the receiver for the mortgage company holding the other. The liens of the respondent R. E. Shaw, doing business as Seahurst Lumber Company, were given priority over the mortgages, which were executed and recorded prior to the date on which the first materials were delivered and also prior to the date on which the mortgagor, R. E. Bailey, acquired title to the property. Error is assigned to the conclusion of law on the basis of which this priority was awarded, and to the conclusion of the trial court that George T. Mood and Ruth J. Mood, his wife, the sellers, were entitled to an equitable lien in the amount of the unpaid balance of the purchase price on any proceeds of the foreclosure sale which Jonson might recover.
In regard to the first assignment of error, the appellants urge that their mortgages are entitled to priority over the materialmen's liens of Shaw because, although the mortgages had not attached to the fee on the date of the first delivery of materials, they had attached to whatever interest Bailey had on that date, and the recording was sufficient to give Shaw constructive notice of their existence.
We agree with this contention. RCW 60.04.020 gives a lien to any person, firm or corporation furnishing materials to be used in the construction of a building, provided notice of the intention to claim a lien is given to the owner or reputed owner within five days after the first delivery. RCW 60.04.030 provides that the property will be subject to the lien to the extent of the interest of the person who, in his own behalf or through his statutory agent, caused the work to be done.
Laws of 1893, chapter 24, § 4, p. 33 [Cf. RCW 60.04.050] provides:
'The liens created by this act are preferred to any line, mortgage or other incumbrance which may attach subsequently to the time of the commencement of the performance of the labor, or the furnishing of the materials for which the right of lien is given by this act, and are also preferred to any lien, mortgage or other incumbrance which may have attached previously to that time, and which was not filed or recorded so as to create constructive notice of the same prior to that time, and of which the lien claimant had no notice.'
The findings reveal that on August 15, 1956, pursuant to an agreement between the Moods and Bailey, two deeds were acknowledged and placed in escrow, with instructions to the agent to deliver the deeds upon receipt of a portion of the purchase price and security for the balance, including an assignment of a portion of the proceeds of an anticipated mortgage to the Western Mortgage Company, said assignment to bear the acceptance of the mortgagee. A mortgage on one of these parcels had been executed and delivered to the Western Mortgage Company on July 30, 1956, and recorded on August 2nd; and a mortgage covering the other was executed and delivered on August 21st, and recorded on August 24th.
Payment for the first parcel was received and the deed was released to Western Mortgage Company on September 12, 1956. Part payment of the purchase price of the second parcel was made and the security for the balance, including an assignment of mortgage funds accepted by the mortgagee, was received by the escrow agent on September 18, 1956, when the deed to this parcel was released to the mortgagee. These deeds were recorden on September 18th and 21st, respectively.
In the meantime, on September 11, 1956, Shaw commenced to deliver materials to the first parcel at Bailey's order. Deliveries to the second parcel were commenced on September 4th.
It is conceded that the interest of the Moods in this property was not subject to the mortgages or to the liens for materials. Generally speaking, work done, upon order of the vendee under a contract of purchase, will not support a lien on the property as against the interest of the vendor. Newell v. Vervaeke, 189 Wash. 144, 63 P.2d 488. An exception to the rule exists where the contract of sale requires the vendee to improve the property. Newell v. Vervaeke, supra, and cited cases. According to the findings, no such requirement was made in this case.
Bailey's interest at the time these encumbrances attached was, at the most, the equitable interest of a contract vendee, that is, the right to acquire the property on payment of the purchase price. This was the interest to which the mortgages had attached. The applicable rule, approved in Young v. Clay, 139 Or. 427, 10 P.2d 602, is stated in 59 C.J.S. Mortgages § 184, p. 237, as follows:
...
To continue reading
Request your trial
-
Smith v. Sherwood & Roberts, Spokane, Inc.
...11, p. 733 (1957); id. § 42, p. 779. But cf. Paschall's, Inc. v. Dozier, 407 S.W.2d 150 (Tenn.1966).26 Cf., Nelson v. Bailey, 54 Wash.2d 161, 338 P.2d 757, 73 A.L.R.2d 1400 (1959).1 Hinchman v. Point Defiance Ry. Co., 14 Wash. 349, 44 P. 867 (1896); Blumauer v. Clock, 24 Wash. 596, 64 P. 84......
-
Bonanza Real Estate, Inc. v. Crouch
...to enforce the broker's own promise upon him. Corbit v. J. I. Case Co., 70 Wash.2d 522, 424 P.2d 290 (1967); Nelson v. Bailey, 54 Wash.2d 161, 338 P.2d 757, 73 A.L.R.2d 1400 (1959); Spake v. Elder, 1 Wash.App. 116, 459 P.2d 820 Here the broker had performed, the agreement did not permit fur......
-
Finch v. Matthews
...See Bignold v. King County, 65 Wash.2d 817, 399 P.2d 611 (1965); Moore v. Dark, 52 Wash.2d 555, 327 P.2d 429 (1958); Nelson v. Bailey, 54 Wash.2d 161, 338 P.2d 757 (1959). ...
-
Kendrick v. Davis
...mortgage. Sigman v. Stevens-Norton, Inc., 70 Wash.2d 915, 425 P.2d 891 (1967); Norlin v. Montgomery, supra; Nelson v. Bailey, 54 Wash.2d 161, 338 P.2d 757, 73 A.L.R.2d 1400 (1959). The quitclaim deeds and assignments of contract interest from the purchasers to the corporate defendants were ......
-
§22.3 - The Vendor-Vendee Relationship
...v. Vervaeke, 189 Wash. 144, 63 P.2d 488 (1937). For priorities between mortgagees of the buyer and materialmen, see Nelson v. Bailey, 54 Wn.2d 161, 338 P.2d 757 (1959). The seller has a vendor's lien that has priority over a buyer's declaration of homestead. Washburn v. Cent. Premix Concret......
-
Table of Cases
...110 Wn.2d 207, 750 P.2d 1247 (1988): 16.1(1)(c) Neitsch v. Tyrrell, 25 Wn.2d 303, 171 P.2d 241 (1946): 17.12(2)(d) Nelson v. Bailey, 54 Wn.2d 161, 338 P.2d 757 (1959): 22.3(4)(b)(i) Nelson v. City of Seattle, 180 Wash. 1, 38 P.2d 1034 (1934): 17.6(2) Nelson v. Nelson Neal Lumber Co., 171 Wa......