Parker v. Northwestern Investment Co.

• Decision Date: 28 March 1927
• Docket Number: 4455
• Citation: 44 Idaho 68,255 P. 307
• Parties: ROY PARKER and W. C. BOSLEY, Respondents; v. NORTHWESTERN INVESTMENT COMPANY, a Corporation, F. C. MCGOWAN, Receiver of the said NORTHWESTERN INVESTMENT COMPANY, FRANCES A. PLEASANTS and WILLIAM A. PLEASANTS, Wife and Husband, MAUD HENRY and A. M. HENRY, Wife and Husband, G. R. WALKER, MRS.C. P. LANGE, THOMAS LEWIS and CARL G. FRIEDEL, Appellants JOSEPH A. RIVETT, Respondent,
• Court: Idaho Supreme Court

255 P. 307

44 Idaho 68

ROY PARKER and W. C. BOSLEY, Respondents;

JOSEPH A. RIVETT, Respondent, v. NORTHWESTERN INVESTMENT COMPANY, a Corporation, F. C. MCGOWAN, Receiver of the said NORTHWESTERN INVESTMENT COMPANY, FRANCES A. PLEASANTS and WILLIAM A. PLEASANTS, Wife and Husband, MAUD HENRY and A. M. HENRY, Wife and Husband, G. R. WALKER, MRS.C. P. LANGE, THOMAS LEWIS and CARL G. FRIEDEL, Appellants

No. 4455

Supreme Court of Idaho

March 28, 1927

MECHANICS' LIENS - RIGHT TO LIEN - AGREEMENT WITH CONTRACT HOLDER - REPUTED OWNER OF CITY LOT - CREATION OF LIEN - OWNER'S PERMISSION OR KNOWLEDGE OF GRADING STREETS-EFFECT.

1. Persons grading and leveling streets of land which had been platted into lots and blocks in accordance with agreement with one holding a contract for purchase thereof held not entitled to liens on lands, under C. S., sec. 7343.

2. The reputed owner of property, as such, has no right to do anything which would give a lien on the premises, under C. S., sec. 7343, authorizing lien for improving lot in any incorporated city or town at request of owner.

3. Owner's permission or knowledge that grading or leveling of streets of land platted into lots and blocks was being done held insufficient to bind owner's interest in land under C. S., sec. 7343, authorizing lien for such improvement, when done at owner's request.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action upon lien claims. Judgment for respondents. Reversed.

Judgment reversed and costs awarded to appellant.

D. L Rhodes, for Appellants Pleasants.

Where there is no privity of contract between the legal owner and the lien claimants there can be no personal judgment against such owner. (Gnekow v. Confer, 5 Cal. Unrep. 654, 48 P. 331; McMenomy v. White, 115 Cal. 339, 47 P. 109; Southern California Lumber Co. v. Schmitt, 74 Cal 625, 16 P. 516; Hume v. Robinson, 23 Colo. 359, 47 P. 271; Farrell v. Lafayette Lumber Co., 12 Ind.App. 326, 40 N.E. 25; Volker-Scowcroft Lbr. Co. v. Vance, 36 Utah 348, Ann. Cas. 1912A, 124, 103 P. 970, 24 L. R. A., N. S., 321; Whalen v. Eagle Lime Products Co., 155 Wis. 26, 143 N.W. 689; Valley Lumber & Mfg. Co. v. Nickerson, 13 Idaho 682, 93 P. 24.)

A party in possession of property under a contract to purchase cannot subject the interest of the owner to a mechanic's lien or for work or labor or improvements made thereon, even though the contract of purchase provides that improvements shall be made which are beneficial to the property. (Steel v. Argentine Min. Co., 4 Idaho 505, 95 Am. St. 144, 42 P. 585; Block v. Murray, 12 Mont. 545, 31 P. 550; Northwest Bridge Co. v. Tacoma Shipbuilding Co., 36 Wash. 333, 78 P. 996; Iliff v. Forssell, 7 Wash. 225, 34 P. 928; Bremen v. Foreman, 1 Ariz. 413, 25 P. 539.)

A purchaser under contract in possession but without title cannot subject the interest of the seller to liens for improvements made by the purchaser; but his interest alone is liable for such liens. (C. S., sec. 7344; Johnson v. Badger Lumber Co., 8 Kan. App. 580, 55 P. 517; Gett v. Friend, 46 Kan. 24, 26 P. 473; Chicago Lbr. Co. v. Schweiter, 45 Kan. 207, 25 P. 592; Mutual Aid Building & Loan Co. v. Gashe, 56 Ohio 273, 46 N.E. 985; Nelson-Bennett Co. v. Twin Falls L. & W. Co., 14 Idaho 5, 93 P. 789; Naylor & Norlin v. Lewiston Ry. Co., 14 Idaho 789, 96 P. 573.)

In order for property to be encumbered with the lien the work must have been done at the request of the owner; a mere desire on his part is not sufficient. (McCray v. Wotkyns, 41 Cal.App. 449, 182 P. 972.)

A. L. Anderson and F. A. Hagelin, for Respondents.

Upon the record in the cases at bar and the authorities applicable thereto, the respondents are entitled to a lien on the lands in question. (C. S., sec. 4087, 7339, 7343; Shaw v. Johnston, 17 Idaho 676, 107 P. 399; Hill v. Twin Falls etc. Water Co., 22 Idaho 274, 125 P. 204; Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 12 S.Ct. 181, 35 L.Ed. 961; Perrault v. Shaw, 69 N.H. 180, 76 Am. St. 160, 38 A. 724; Mallory v. La Crosse Abbatoir Co., 80 Wis. 170, 49 N.W. 1071; Miller v. Mead, 53 Hun (N. Y.), 636, 6 N.Y.S. 273; affirmed, 127 N.Y. 544, 28 N.E. 387, 13 L. R. A. 701; Ottiwell v. Muxlow, 15 Daly (N. Y.), 308, 6 N.Y.S. 518; Husted v. Mathes, 77 N.Y. 388; 2 Jones on Liens, pp. 444, 447, 448, 450.)

GIVENS, J. Wm. E. Lee, C. J., and Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.

Appellants Pleasants, husband and wife, were the owners of certain land which they contracted to sell to the appellant Northwestern Investment Company under an escrow agreement. Roy Parker and W. C. Bosley, respondents, after consulting with Mr. Pleasants as to the standing of the Northwestern Investment Company, entered into a contract with the Northwestern Investment Company for grading and leveling the streets of the land sold by the Pleasants to the Northwestern Investment Company which had been platted into lots and blocks. Respondent, Joseph A. Rivett, was employed by Parker and Bosley to do some of the grading and leveling. Rivett not being paid, within the time allowed by law, filed his claim of lien against the land and commenced foreclosure. Parker and Bosley were thereafter notified to quit the job and filed their claims of lien and commenced foreclosure. The Pleasants alone appeared and demurred to the Parker-Bosley complaint and thereafter answered to both complaints. The actions were consolidated and tried by the court without a jury and judgment was rendered in favor of respondents in both actions and this appeal taken.

The main question involved is whether respondents were entitled to liens upon the lands, superior to and enforceable against the rights of appellants.

It is appellants' contention under C. S., sec. 7343 (providing that any person who, at the request of the owner of any lot in any incorporated city or town, grades, fills in or otherwise improves the same, or the street in front of or adjoining the same has a lien on such lot for the work done or material furnished), since appellants hold the record title and the Northwestern Investment Company had only a contract for the purchase of the land and respondents performed the work at the request of the Northwestern Investment Company, that respondents are not entitled to liens against appellants because it was not shown that appellants requested them to do the work.

Paragraph four of the contract between the Pleasants and the Northwestern Investment Company, covering the work which was done by the respondents, provided as follows:

"The party of the second part declares its intention to place the lots represented by said plat on sale under certain restrictions and under contracts of sale providing for certain improvements, of not less than $ 20,000 on the project, the character of which shall be later determined by it. The parties of the first part represent that they own certain other contiguous ground now platted into lots and blocks, and agree that the lots therein shall not be sold by them except as subject to the same building restrictions, and restrictions as to negroes, chinamen, etc., as used by the party of the second part in selling its lots, and also that they will not sell their lots at less than $ 400 for a 50 foot front exclusive of improvements, during the time that the second parties are engaged in selling its lots or collecting therefor, or for a period of three years."

C. S., sec. 7343, provides that to authorize a lien, the work must have been done at the request of the owner. The complaint alleged in paragraph 7 that:

"That at the date of said agreement and during the time said work was performed, the said defendants, Frances A. Pleasants and William A. Pleasants, were the persons in whose name the record title to said property was vested, and that the said Frances A. Pleasants and William A. Pleasants, had contracted and agreed to sell said premises to the said defendant, Northwestern Investment Company, and in said agreement had consented and agreed that said work and labor might be performed as aforesaid, and in said contract authorized the said Northwestern Investment Company to have the said streets leveled and improved as aforesaid; that during said time the said Northwestern Investment Company was the owner and reputed owner of said premises and caused said work and labor to be performed as aforesaid."

It was not disputed that the title to the property was in the Pleasants and that they had agreed to sell the premises to the Northwestern Investment Company and that they had consented, as appears in paragraph four of the contract, that improvements might be placed upon the land. The nature of the improvements was not stated in the contract and it was...