Pacific Spruce Corp. v. Oregon Portland Cement Co.
| Decision Date | 01 July 1930 |
| Citation | 133 Or. 223,289 P. 489 |
| Parties | PACIFIC SPRUCE CORPORATION v. OREGON PORTLAND CEMENT CO. ET AL. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Lincoln County; James W. Hamilton, Judge.
On petition for rehearing and motion to recall mandate.
Petition and motion denied.
For former opinion, see 286 P. 520.
G. B. McCluskey, W. H. Waterbury, English & Krause and R. M. Turner, all of Toledo, and Arthur Clarke and Allan G. Carson, both of Corvallis, for appellant Pacific Spruce Corporation.
L. E Schmitt and B. A. Ewers, both of Portland, for appellant Zimmerman.
Lewis Lewis & Finnigan, of Portland, for appellants Gray and Kelly.
William C. Palmer, of Portland, for appellant Oregon Portland Cement Co.
Yates & Lewis, of Corvallis, for respondent Woodcock.
In a petition for rehearing the appealing lien claimants contend that the court, in holding that their liens should have priority over the mortgage upon the building, erred in not holding that they were likewise entitled to priority as first liens upon the land. They say that the case is one which comes squarely within the provisions of section 10193, Or L., which provides that: "A lien created by this act upon any parcel of land shall be preferred to any lien, mortgage, or other incumbrance which may have attached to said land subsequent to the time when the building or other improvement was commenced * * * also to any lien, mortgage, or other incumbrance which was unrecorded at the time when said building, structure, or other improvement was commenced," etc.
These provisions they assert include all mortgages, whether purchase price mortgages or otherwise, that may have attached to the land subsequent to the time when the building on which the lien was claimed was commenced and, since it was stipulated that the building was commenced on March 19th and the mortgage was not executed until March 20th and not recorded until March 22d, their liens must by force of the statute be preferred over the lien of the mortgage as prior liens upon the land.
The language of section 10193, Or. L., is: "A lien created by this act upon any parcel of land shall be preferred," etc. This refers to a lien created by the act, not upon some building alone, but also upon both the building and the land. All liens created by the act are by force of the statute liens upon some building. There are, however, but two instances under our statute when the act itself creates a lien upon the land in addition to creating a lien upon the building. Those are the instances provided for and defined in sections 10192 and 10194, Or. L. Section 10191, Or. L., which gives the right in all instances to a lien, confers the right to a lien upon the building, but nothing contained in that section gives the right to a lien upon the land. Chenoweth v. Spencer, 64 Or. 540, 131 P. 302, Ann. Cas. 1914D, 678. Whether the lien created by that section shall extend to the land depends wholly upon whether the facts of the particular case bring the case within the provisions of section 10192 or section 10194, Or. L. Under section 10194, where the building or improvement is constructed upon land with the knowledge of the owner of the land by a person who is not the owner and the owner fails to give notice that his property will not be responsible therefor, the lien upon the building extends to and binds the land. That section, however, has no application here because it was stipulated that Woodcock, the owner of the land, had no knowledge of the construction of the building until after he had parted with his title thereto.
Section 10192 provides: "The land upon which any building or other improvement as aforesaid shall be constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof * * * shall also be subject to the liens created by this act, if at the...
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