Paulsen v. Manske

• Decision Date: 02 October 1888
• Citation: 126 Ill. 72,18 N.E. 275
• Parties: PAULSEN v. MANSKE et al.
• Court: Illinois Supreme Court

126 Ill. 72

18 N.E. 275

PAULSEN

v.MANSKE et al.

Supreme Court of Illinois.

October 2, 1888.

Appeal from appellate court, First district.

Mechanic's lien proceedings by Charles Manske, Otto Schmidt, August Zander, and Henry Sierks, against William A. Paulsen and Lewis A. and Flora A. Brown. Lien sustained, and defendant Paulsen appeals.Edward J. Judd and Eugene Clifford, for appellant.

William Vocke and Harvey Storck, for appellees.

SHOPE, J.

It is insisted that the contract under which the labor was performed and masterial furnished, for which the lien is sought to be established in this case, was not made with the owner of the land, ‘and so no lien can exist in favor of the contractors.’ The first section of the act gives a lien to any person who shall, ‘by contract with the owner of any lot or piece of land, furnish labor or material,’ etc. The second section provides that such lien ‘shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which the owner may have in the lot or land at the time of making the contract.’ Construing these two sections together, it becomes evident that by the words ‘the owner of any lot or piece of land,’ as used in the first section, is meant the owner of any interest or estate in such lot or land. It is indispensable that the party with whom the contract is made shall have some estate or interest in the premises upon which the building is erected or improvement made, but such estate may be the fee, or an estate for life or for years, or any interest, legal or equitable, in the land. This has been the uniform construction placed on the statute by this court. Under a similar statute (chapter 65, Rev. St. 1845, §§ 1-17) it was held that a pre-emption right was an interest in land which could be subjected to mechanic's lien. Turney v. Saunders, 4 Scam. 527. So, also, the possessory right and interest of the builder. Steigleman v. McBride, 17 Ill. 300;Garrett v. Stevenson, 3 Gilman, 261. Under the present statute the party in possession under a contract of purchase ‘is to be considered owner only, in the sense of this statute, to the extent of the interest he owns, and that interest is what the mechanic's lien affects; and as to these proceedings that interest is to be considered as ‘the land’ on which the first and second sections give the mechanic's lien.' Hickox v. Greenwood, 94 Ill. 266;Tracy v. Rogers, 69 Ill. 662;McCarty v. Carter, 49 Ill. 53;Judson v. Stephens, 75 Ill. 255;Henderson v. Connelly, 123 Ill. 98, 14 N. E. Rep. 1.

By reference to the agreements entered into by and between Paulsen and Lewis A. and Flora A. Brown it will be seen that by the first the Browns covenanted to convey to Paulsen, by warranty deed, the west 95 feet of the lot in question, (being all of said lot except 35 feet off the east end,) and Paulsen on his part covenanted to pay for said 95 feet $5,846, by building a row of buildings on said lots, according to the second agreement. Both agreements were executed at the same time, and are to be considered together. The second agreement provides that, in consideration ‘of the contract for a deed,’ etc., in the first writing mentioned, Paulsen shall build a row of houses on said lot, making the house on the east 35 feet thereof, reserved by the Browns, a double house, with a barn, and costing $5,846. It is then provided that the Browns shall execute notes, mortgages, and all such documents as may be necessary to borrow money on the lots with which to erect said buildings. All money, however, to be controlled by them, and all work and payment of contractors to be controlled by Paulsen. If the house and improvements put on the east 35 feet-the part reserved by the Browns-cost more than $5,846, they were to assume of the mortgage debts an amount equal to such excess only. If the cost was less than that sum, Paulsen was to pay the difference to them. Paulsen was to derive all profits arising from the contract, except what might inure, if any, from the improvement of the east 35 feet. If we adopt the construction of this contract contended for by appellant, he would hold as purchaser, and his interest would, as we have seen, be subject to the mechanic's lien, and the purchaser, at a sale thereof, under such proceedings, would take whatever interest, legal or equitable, he might have in the premises. That the decree was properly entered as against the interest of Paulsen cannot be questioned, unless the lien had been waived, as we shall see was not done as to him. The fact that Paulsen alone appeals to this court would therefore necessarily lead to an affirmance of the judgment of the appellate court, even if it were conceded that there was error in extending the lien to the interest of the Browns in said premises. If the lien existed as to Paulsen's interest, there would be no error of which he could be heard to complain.

But it is not necessary to put this case upon the grounds indicate. Upon examination it will be found that the scheme contemplated the erection of a house for Mrs. Brown on the east 35 feet of the lot, for which, if built according to the plans agreed upon by the parties, she was willing to pay by conveying the residue of the lot to Paulsen. It may be difficult to define the exact legal relation existing between these parties, but it is evident that Paulsen was authorized and empowered by the Browns to erect the row of buildings upon the lot, and they were practically to furnish the money, by raising it on mortgage of the whole property, with which to build the same, not only on the 35 feet reserved by them, but upon the 95 feet to be conveyed to Paulsen as well. It was understood that finally the Browns were to assume only so much of the mortgage as the house built for them should cost in excess of $5,846. By the terms of the contract they retained control of the money, while the work and payment of contractors were to be under the control of Paulsen. The evidence shows that the money...