Ness v. Davidson
| Decision Date | 05 May 1892 |
| Citation | 52 N.W. 46,49 Minn. 469 |
| Parties | Nels J. Ness v. Edward E. Davidson et al |
| Court | Minnesota Supreme Court |
April 14, 1892, Argued
Appeal by defendant Edward E. Davidson from a judgment of the District Court, Ramsey county, Egan, J., entered January 19 1892.
This was an action to foreclose a mechanic's lien. The plaintiff, Nels J. Ness, between November 11, 1887, and January 28, 1888, furnished materials and built stone walls upon lots three, (3,) four, (4,) nine, (9,) and ten, (10,) in block twenty-one, (21,) St. Paul Proper. This stone work was required to repair and remodel the building thereon commonly known as "Exposition Rink." Plaintiff's bill amounted to $ 4,442.81, on which he was paid $ 1,625, and he filed a statement of lien for the balance. The successive controversies that arose in the action all grew out of the circumstances affecting the title to these lots.
William F. Davidson, of St. Paul, died, testate, May 26, 1887, seised in fee of this property. His will was duly proved and allowed in the Probate Court on June 23, 1887, and was as follows:
WILL.
I William F. Davidson, of St. Paul, Minnesota, being of sound mind and memory, do make, publish, and declare this my last will and testament, in manner following, viz.:
First. I direct that all my just debts be paid.
Second. I give, bequeath, and devise all the rest, residue, and remainder of my property of every name and nature, and wheresoever situated, to my wife, Sarah A. Davidson, and my children, Edward E. Davidson and Sallie M. Davidson, share and share alike; this provision for my wife to be in lieu of dower or other legal rights in and to my property.
Third. I nominate and appoint Sarah A. Davidson, my wife, Edward E Davidson, my son, P. S. Davidson, my brother, F. L. Johnson of St. Louis, and James H. Davidson, of St. Paul, Minnesota executors of this my last will and testament; and I hereby authorize and fully empower them, or the survivor or successors of them, to sell and convey to any person or persons, and upon such terms as to them may seem advisable, any real estate that may come into their possession or control under this will, and to give proper deeds of conveyance thereof; and I also authorize them to sell and dispose of any personal property that may be in their possession or control under this will, and direct that no bond for the faithful discharge of their duties as executors be required of the executors nominated by me aforesaid.
In testimony whereof, I have hereunto set my hand and seal, this 25th day of May, A. D. 1887. Wm. F. Davidson. [Seal.]
The daughter named in the will was a minor. All the executors named in the will accepted the trust and entered upon the discharge of their duty. On August 17, 1887, all the executors except the widow made a contract, under seal, with James M. Wood, Jacob E. Sackett, and Enoch W. Wiggins, whereby these three men agreed to make certain improvements and alterations in the building on the lots, costing not less than $ 30,000, and, in consideration thereof and of certain rents, were to have a lease of the premises for ten years. The widow refused to join in the contract. These persons employed the plaintiff, Nels J. Ness, to build the stone walls above mentioned. They became insolvent in January, 1888, and abandoned the work and the contract.
This court held on the first appeal in this action that a lien could not be enforced against the interest of the widow or the daughter, but might be against the interest of the son, as he was a party to the contract. Ness v. Wood, 42 Minn. 427. Meantime the executors, on January 2, 1889, under the power in the will, contracted to sell one of the lots to Thomas Lowry, and on January 26, 1889, contracted to sell him the others, and on March 28, 1889, made a third contract with Lowry superseding the two previous ones, and on May 1, 1889, all the executors made and delivered to Lowry a deed of the lots for $ 180,000, of which sum he paid down $ 60,000, and gave his three notes for the residue, secured by mortgage on the real estate. Of the money paid down, Edward E. Davidson received under the will $ 17,000 as his distributive share after payment of certain debts of the testator and expenses of administration.
The order refusing a new trial having been reversed in this court as to the defendant Edward E. Davidson, the action was remitted to the District Court for further proceedings. It was then dismissed as to all the executors and devisees except Edward E. Davidson. On leave obtained under 1878 G. S. ch. 66, § 128, a supplemental answer was interposed, setting out the facts occurring since the former answer, and making Lowry a defendant in the action. The cause was again tried, and findings filed, and judgment ordered that an undivided third of the property devised to Edward E. Davidson be sold to pay plaintiff's claim. He moved for a new trial, and, being denied, appealed to this court, where it was held that the deed to Lowry, under the power given the executors by the will, conveyed the property free from the liens created thereon by the devisees after the death of the testator, and reversed the order, thereby granting a new trial. Ness v. Davidson, 45 Minn. 424.
The plaintiff then obtained leave, and filed a supplemental complaint, setting out the sale to Lowry and the payment of $ 17,000 of the price to Edward E. Davidson, and stating that the Davidson estate had been fully administered, and other facts which occurred pending the action, and praying that plaintiff's claim be adjudged a lien on the interest of Edward E. Davidson in the property and after the sale to Lowry on the proceeds of the sale, and particularly on the $ 17,000 that he received from the proceeds; that he be adjudged to pay plaintiff's lien out of it. The third trial was had October 22, 1891. Findings were made and filed, and judgment entered for the plaintiff substantially as prayed in the supplemental complaint. From that judgment this appeal was taken.
Judgment affirmed.
Williams, Goodenow & Stanton and Eller & How, for appellant.
The plaintiff, having no rights except those given him by the statute as a subcontractor and material man, with a lien extending, by the operation of that statute, only to an undivided conditional estate in the land, has his lien upon such estate destroyed by the happening of the condition subject to which it existed, and now, by supplemental complaint, seeks to transfer and fasten the lien so destroyed upon the personal property coming to the former owner of the conditional estate in lieu thereof, changing the action from a statutory one to foreclose a lien upon real estate to a proceeding in equity for the enforcement of a trust; and this in a case where there was never any personal liability on the part of the defendant for the debt secured by the lien, and where the lien upon the land is destroyed through no wrongful act of any one, but solely through the valid execution of a lawful power that was paramount to the interest of the defendant in the land, and consequently to the lien sought to be enforced.
The right to a mechanic's lien upon real property by one who occupies the position of subcontractor or material man is a purely statutory right, and the remedy given therefor a purely statutory remedy. Being created by the statute, the lien exists only so far as the statute provides. Toledo Novelty Works v. Bernheimer, 8 Minn. 188, (Gil. 92;) Freeman v. Carson, 27 Minn. 516; Burbank v. Wright, 44 Minn. 544; King v. Smith, 42 Minn. 286; Phil. Mech. Liens, §§ 9, 15, 18, 45.
Being a purely statutory right, with a statutory remedy for its enforcement, neither the lien nor the remedy therefor can be extended by the application of equitable principles resting upon a different foundation, and which are properly applicable only to rights of a different character.
The right to a lien itself could not become clothed with any additional equities, or furnish a basis for the application of so-called equitable principles, merely from the fact that it was authorized to be enforced by the same sort of procedure as that provided for the foreclosure of mortgage liens. The foreclosure of mortgages, while coming within a class of cases over which equity has always assumed jurisdiction, is, in this State, regulated by statute, and the section last above quoted in regard to liens merely extends to that class of liens the forms of procedure provided by statute in the case of mortgages. It is the mere statutory adoption for a particular purpose of a particular statutory remedy already existing; the right to a lien being by the statute confined to the interest of the owner in the building improved and the land upon which the same is situate. King v. Smith, 42 Minn. 286; Buchan v. Sumner, 2 Barb. Ch. 165.
So far as this defendant and his property are concerned, this right was a mere jus ad rem, and the remedy, so far as any question here involved is concerned, is controlled by the principles governing ordinary proceedings in rem. Phil. Mech. Liens, § 305. In that class of actions it is a fundamental principle that with the destruction of the res, its passage beyond the jurisdiction of the court, the remedy is at an end. In such proceedings, whether strictly in rem or merely quasi in rem, the property is the thing proceeded against, and, with destruction of that, nothing is left against which a judgment can operate.
The sale that was made was not of defendant's interest in the land, but of the estate that the testator had therein at the time of his death, and might properly be made for the purposes of conferring the benefactions of the testator in the form of personal property rather than real estate. It was only to the interest of defendant in the...
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