Noll v. Graham, 31357.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtTHIELE, Justice.
Citation27 P.2d 277,138 Kan. 676
Decision Date09 December 1933
Docket Number31357.
PartiesNOLL v. GRAHAM et al. [*]

27 P.2d 277

138 Kan. 676

NOLL
v.
GRAHAM et al. [*]

No. 31357.

Supreme Court of Kansas

December 9, 1933


Syllabus by the Court.

Finding based on conflicting evidence is conclusive on appeal.

Lien statements merely showing balance due for bricks held not fatally defective, and materialman was properly permitted to amend at trial by showing number of bricks furnished and price.

Lien statements setting out dates and amounts due for merchandise furnished, without specifying nature of merchandise, held not fatally defective, and at trial materialman was properly permitted to amend to show specific items.

Lien statements showing total amount for installation of warm air registers and wall stacks held not fatally defective, and permission was properly given to itemize statements at trial by showing hours of labor and unit prices of materials.

Vendee in possession of realty under oral purchase contract, consideration being conveyance of other realty and proceeds from mortgaging realty, could create mechanic's lien on realty.

Purchase-money mortgage given simultaneously with deed and as part of same transaction held prior to existing and subsequent claims and liens against mortgagor.

Purchase-money mortgage held inferior to mechanic's lien only in so far as mortgage secured additional money.

1. The court's finding as to date of commencement of an improvement based on conflicting evidence is conclusive on appeal, even though some documentary evidence, which would have warranted but did not compel a different conclusion, was received.

2. A claim of error in permitting mechanics' lienholders to amend lien statements examined, and held, that the lien statements as originally filed were sufficiently itemized, that they were not fatally defective, and that they were properly amended.

3. A person in possession of real estate which he has orally agreed to purchase, the consideration being the conveyance of other real estate and moneys to be realized from mortgaging the real estate, has such title as will enable him to create a mechanic's lien thereon as against such mortgagee.

4. A mortgage for the unpaid part of the purchase price, given simultaneously with a deed for the property and as a part of the same transaction, takes precedence over all existing and subsequent claims and liens of every kind against the mortgagor.

5. A mortgage which includes in the amount secured purchase-price money and additional money may be divided, and so far as it secures purchase money be a first and prior lien, and so far as it secures additional money be inferior to mechanics' liens.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by C. A. Noll, doing business as Beacon Brick Company, against John I. Graham, the Noble Mortgage Company, formerly the Fisher-Moore Investment Company, and others. From the judgment, the last-named defendant appeals.

Judgment reversed, and cause remanded with directions.

W. R. Glass, Innis D. Harris, Jr., W. J. Glass, H. W. Hart, Glenn Porter, and Enos E. Hook, all of Wichita, for appellant.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester Morris, O. W. Helsel, T. V. McCluggage, Roy S. Elder, B. F. Alford, Lloyd Cooper, Earl Blake, Harold Blake, Chas. B. Hudson, Geo. Austin Brown, Z. Wetmore, and Geo. M. Ashford, all of Wichita, for appellees.

THIELE, Justice.

This was an action to foreclose mechanics' liens and mortgages and to determine priorities. The trial court held the mechanics' liens to be prior to the mortgages, and the mortgagee appeals.

Evidence was offered which tended to show the following: The real estate here involved is lots 7 and 8, block 10, Lincoln Heights addition to Wichita. Prior to July 9, 1931, one W. L. Morris was the record owner of the lots. On April 2, 1930, the Fisher-Moore Investment Company, the predecessor of the Noble Mortgage Company, acquired title to property at 719 South Lawrence avenue in Wichita, subject to incumbrance. John I. Graham, a contractor and builder in Wichita, was the actual owner of this property, but the investment company held the title to secure it on a note of $2,250. About July 1, 1931, Graham was approached by the investment company, on a proposition that the lots first mentioned be acquired and houses built thereon. The consideration for the lots was to be paid by the investment company paying Morris $400 and conveying the South Lawrence avenue property free and clear except a mortgage to Wheeler, Kelly, Hagny Investment Company. The title to the lots was to be taken in Graham's name, and two mortgages of $4,800 each were to be placed on the lots; the mortgages to be first liens. Out of the total amount of $9,600, the investment company was to pay itself the $2,250 note above mentioned and the following October was to pay Morris the sum of $400. The South Lawrence avenue property was conveyed to Harriet Morris, a sister of W. L. Morris, by a deed dated April 9, 1931, and recorded July 14, 1931. The grantee is a sister-in-law of Max A. Noble, president of the defendant mortgage company. When the exchange was first mentioned, it was agreed that two houses should be erected on the lots to be acquired at a cost of $7,500 each; the [27 P.2d 279] general plan of the houses being suggested by Graham, but the cost to be determined by the investment company. The investment company was to finance the deal. Graham never put in any money of his own and all sums expended were furnished by the investment company. After the arrangement was agreed on, time was taken to bring abstracts of title to date, etc., and on July 9, 1931, the lots were transferred to Graham, who at the time executed the mortgages, and at the same time Graham conveyed the lots by warranty deed to the Fisher-Moore Investment Company, subject to the mortgages, as security that he would go ahead and build the houses. On July 7, 1931, without any express consent of Morris or the investment company, Graham started excavation of the first cellar, and the construction thereafter proceeded; the bills, in so far as they were taken care of, being paid by the investment company.

The properties were never fully completed; many mechanics' lien statements were filed, and the suit was instituted by one lienholder, who made Graham, the other mechanics' lien claimants, and the Noble Mortgage Company, formerly the Fisher-Moore Investment Company, defendants. Issues were joined and the cause was tried. In the court below, the principal controversy of fact was as to whether the work was commenced before the mortgages were recorded, and the controversies of law were as to the sufficiency of a part of the lien statements and as to the priority of liens. The trial court refused the appellant's requested findings of fact and conclusions, and made the following:

"Findings of Fact
"1. Prior to July 9, 1931, W. L. Morris was the record owner of the property in question. Following negotiations he sold this property to John I. Graham and on July 9, 1931, executed a deed to the property.
"2. John I. Graham was at and prior to this time a contractor and builder in the City of Wichita. Previous to the execution of the deed he had made plans and arrangements to build two houses upon the property in question and about July 3 had the basement for the north house staked out. At or near that time he contracted with Overstreet & Wilson for excavation of the basements for the two houses. They began work on the excavation for the first, or north house, on the 7th day of July, 1931, and completed that excavation, also the excavation for the south house. The work for both was done under one contract.
"3. Contracts for other work were let by John I. Graham and the work done, material and labor being furnished as set up by the various claimants in this action. In each case there was one contract for the two houses.
"4. At the time of the purchase of lots by Graham there was an exchange of property and adjustment of loans as between Graham and the investment company. The deed was executed to Graham on July 9, 1931, and following that John I. Graham and his wife, Charlotte Graham, made applications for two loans in the sum of $4,800.00 each, one on the south half of Lots 7 and 8 and one on the north half of Lots 7 and 8. They executed notes and mortgages for the same on July 9, which were recorded with the register of deeds on July 10, 1931. No part of the principal or interest has been paid. The Investment Company, in the arrangement, paid $400.00 in cash to Morris for Graham upon the lots in question. The company credited itself with $2250.00, payment of a mortgage held on the property known as the South Lawrence Avenue property, which entered into the deal by which Graham purchased the lots in question from Morris. Following that, the Investment Company advanced money from time to time as work progressed upon the two houses built by Graham upon the lots in question. The Investment Company also held as collateral a deed to the property from Graham and wife, which was never recorded, but returned to Graham.
"5. Statements for liens as amended and as filed are made a part of these findings.
"6. A lien is claimed by W. A. Cunningham for linoleum and shades furnished in the two houses. The shades were made to order in special sizes for the various windows, were set back in a recess of the window and were held in place by brackets nailed to the building. The linoleum was an inlaid linoleum cut to fit the rooms and cemented to the floor.
"Conclusions of law.
"I. Construction of the two
...

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9 practice notes
  • Carolina Builders Corp. v. Howard-Veasey Homes, Inc., HOWARD-VEASEY
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • January 15, 1985
    ...& Supply Co. v. Cox, 98 Fla. 405, 123 So. 820 (1929); Northwestern Nat'l Bank v. Metro Center, 303 N.W.2d 395 (Iowa 1981); Noll v. Graham, 138 Kan. 676, 27 P.2d 277 (1933); Chicago Lumber Co. v. Fretz, 51 Kan. 134, 32 P. 908 (1893); Sullivan v. Thomas Org., P.C., 88 Mich.App. 77, 276 N.W.2d......
  • Finnegan v. Ihinger, 34230.
    • United States
    • United States State Supreme Court of Kansas
    • July 19, 1939
    ...Pratt v. Topeka Bank, 12 Kan. 570; Greeno v. Barnard, 18 Kan. 518; Bond v. Westine, 128 Kan. 370, 373, 278 P. 12; Noll v. Graham, 138 Kan. 676, 685, 686, 27 P.2d 277, and cases therein cited. In the Noll case it was said: "The general rule is that a mortgage given for the unpaid part of the......
  • American General Financial v. Carter, No. 98,031.
    • United States
    • Court of Appeals of Kansas
    • May 16, 2008
    ...takes precedence over all existing and subsequent claims and liens of every kind against the mortgagor.' (Emphasis added.) Noll v. Graham, 138 Kan. 676, Syl. ¶ 4, 27 P.2d 277 (1933). Additionally, K.S.A. 58-2305 provides that a purchase money mortgage `shall have preference over a prior jud......
  • Davis-Wellcome Mortg. Co. v. Long-Bell Lumber Co., DAVIS-WELLCOME
    • United States
    • Kansas Supreme Court
    • March 7, 1959
    ...244, 245 P.2d 1180; Boese v. Crane, 182 Kan. 777, 779, 324 P.2d 188; Norris v. Nitsch, 183 Kan. 86, 97, 325 P.2d 326). In Noll v. Graham, 138 Kan. 676, 27 P.2d 277, it was held that the trial court's finding of the date of commencement of an improvement, based on conflicting evidence, was c......
  • Request a trial to view additional results
9 cases
  • Carolina Builders Corp. v. Howard-Veasey Homes, Inc., HOWARD-VEASEY
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • January 15, 1985
    ...& Supply Co. v. Cox, 98 Fla. 405, 123 So. 820 (1929); Northwestern Nat'l Bank v. Metro Center, 303 N.W.2d 395 (Iowa 1981); Noll v. Graham, 138 Kan. 676, 27 P.2d 277 (1933); Chicago Lumber Co. v. Fretz, 51 Kan. 134, 32 P. 908 (1893); Sullivan v. Thomas Org., P.C., 88 Mich.App. 77, 276 N.W.2d......
  • Finnegan v. Ihinger, 34230.
    • United States
    • United States State Supreme Court of Kansas
    • July 19, 1939
    ...Pratt v. Topeka Bank, 12 Kan. 570; Greeno v. Barnard, 18 Kan. 518; Bond v. Westine, 128 Kan. 370, 373, 278 P. 12; Noll v. Graham, 138 Kan. 676, 685, 686, 27 P.2d 277, and cases therein cited. In the Noll case it was said: "The general rule is that a mortgage given for the unpaid part of the......
  • American General Financial v. Carter, No. 98,031.
    • United States
    • Court of Appeals of Kansas
    • May 16, 2008
    ...takes precedence over all existing and subsequent claims and liens of every kind against the mortgagor.' (Emphasis added.) Noll v. Graham, 138 Kan. 676, Syl. ¶ 4, 27 P.2d 277 (1933). Additionally, K.S.A. 58-2305 provides that a purchase money mortgage `shall have preference over a prior jud......
  • Davis-Wellcome Mortg. Co. v. Long-Bell Lumber Co., DAVIS-WELLCOME
    • United States
    • Kansas Supreme Court
    • March 7, 1959
    ...244, 245 P.2d 1180; Boese v. Crane, 182 Kan. 777, 779, 324 P.2d 188; Norris v. Nitsch, 183 Kan. 86, 97, 325 P.2d 326). In Noll v. Graham, 138 Kan. 676, 27 P.2d 277, it was held that the trial court's finding of the date of commencement of an improvement, based on conflicting evidence, was c......
  • Request a trial to view additional results

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