Pickens v. Plattsmouth Land and Investment Co.

• Decision Date: 24 March 1891
• Citation: 48 N.W. 473,31 Neb. 585
• Parties: WILLIAM H. PICKENS, APPELLEE, v. PLATTSMOUTH LAND AND INVESTMENT CO. ET AL., APPELLANTS
• Court: Nebraska Supreme Court

48 N.W. 473

31 Neb. 585

WILLIAM H. PICKENS, APPELLEE, v. PLATTSMOUTH LAND AND INVESTMENT CO. ET AL., APPELLANTS

Supreme Court of Nebraska

March 24, 1891

APPEAL from the district court for Cass county. Heard below before CHAPMAN, J.

Reversed in part and affirmed in part.

O. H Ballou, for appellant, cited: Irish v. Lundin, 28 Neb. 84.

J. B Strode, contra, cited, contending that the Improve-Company was estopped by the conduct of its officers from denying the liens: Buckstaff v. Dunbar, 15 Neb. 114; McCormick v. Lawton, 3 Id., 149.

OPINION

COBB, CH. J.

This action was brought by the appellee in the district court of said county to foreclose a mechanic's lien for the erection of certain buildings on the property of the appellant described as the northwest quarter of the southeast quarter of section one, town twelve north, range thirteen east, sixth P. M., in Cass county, Neb. The amount of the claim was $ 800.25. The appellants set up in their brief that the Plattsmouth Land and Improvement Company were the legal owners of the title to a tract of land near Plattsmouth amounting to two hundred acres, as appeared of record in Cass county, the Plattsmouth Investment Company at the time holding an unrecorded and undisclosed parol contract for the purchase of the said real estate. Appellee Pickens contracted with the Plattsmouth Investment Company, the equity holders, for the erection of certain buildings, known as the Park House, etc., and built the same on said land, the Plattsmouth Land and Improvement Company not being a party to said contract. Lien was filed and suit brought to foreclose and sell the buildings and also the lands on which they were placed. Decree for plaintiff ordering sale of premises, including realty, from which decree this appeal is taken by the Plattsmouth Land and Improvement Company.

The counsel for appellee replied that the counsel for appellants, in his statement of the case says that the Plattsmouth Investment Company held an unrecorded and undisclosed parol contract for the purchase of the real estate described in the petition, at the time the contract for the erection of a Park House, mentioned in the petition, was made. To this we assent; but we do not assent to his further statement that the contract for the erection of said Park House was made with the Plattsmouth Investment Company, the equity holder, alone, and that the Plattsmouth Land and Improvement Company, the holder of the legal title, was not a party to said contract. The evidence in this case warrants us in stating that the Plattsmouth Land and Improvement Company took such action, through its officers, in procuring the appellee to enter into the contract and to erect the building as to make it a party to the contract.

The cause was tried to the court and the following decree was entered: "This cause came on to be heard upon the petition, answer, and reply, and the evidence, and a jury being waived, was submitted to the court, and the court finds that there is due the plaintiff from the Plattsmouth Investment Company and the Plattsmouth Land and Improvement Company upon the account set forth the sum of $ 800, with interest at the rate of seven per cent from January 24, 1888 and that plaintiff on November 19, 1887, made an account in writing of the items set forth, and, after making oath thereto, filed the same in the clerk's office of Cass county, where it is duly recorded, and is a subsisting mechanic's lien upon the premises described and known as "Rural Park,' as shown by the plat of Livingston Heights in book 15, page 179, of Cass county records, and the buildings and improvements thereon; and the court finds that the plaintiff is entitled to have said lien enforced. It is therefore considered and adjudged that the plaintiff recover from the defendants, the Plattsmouth Investment Company and the Plattsmouth Land and Improvement Company, the sum of $...