S. Tex. Lumber Co. v. Epps

• Decision Date: 22 June 1915
• Docket Number: Case Number: 4743
• Citation: 48 Okla. 372,150 P. 164,1915 OK 507
• Parties: SOUTH TEXAS LUMBER CO. v. EPPS et al.
• Court: Oklahoma Supreme Court

1915 OK 507

150 P. 164

48 Okla. 372

SOUTH TEXAS LUMBER CO. v. EPPS et al.

Case Number: 4743

Supreme Court of Oklahoma

Decided: June 22, 1915

Syllabus

¶0 1. MECHANICS' LIENS--Personal Judgment--Levy on Property Subject to Mechanic's Lien. In order to reach the property on which the material purchased was used to improve, and in order to subject the same to the payment of the debt so incurred, it is not necessary to have first obtained a judgment fixing a lien thereon in favor of the seller of the material, but it can be reached in such cases by first reducing the account to a personal judgment, and then levying on said real property by an execution issued on said judgment, provided no superior interest of a third party has intervened.

2. LIS PENDENS--Mechanics' Liens--Purchase Pending Suit--Personal Judgment. A materialman does not lose his lien merely because he fails to file the same as the statute provides. The filing of the lien is only necessary to protect him against the interest of third parties; and if, pending suit to fix the lien on the property for material furnished to improve the same, a third party purchases the property, even though in good faith for value, if the suit is carried to a successful termination, and a judgment is therein procured fixing a lien on said property, then the said lien so fixed is superior to the interest of the said purchaser, but, if the court refuses to enter judgment fixing a lien on said property, or if plaintiff abandons his purpose to fix said lien in said suit, and a personal money judgment only is rendered therein against defendants and the judgment becomes final after that date, the purchaser's title to the property is relieved of any interest or claim that might have attached thereto had plaintiff carried its suit for that purpose to a successful conclusion.

3. HOMESTEAD--Exemption--"Purchase Price." A debt contracted for material used in the improvement of the homestead cannot be considered as constituting a part of the "purchase price" of said homestead.

Error from District Court, Jefferson County; Frank M. Bailey, Judge.

Action by the South Texas Lumber Company against C. C. Epps and another for balance due for material sold and for foreclosure of a lien. A personal judgment only was rendered against defendants, execution was levied on the property on which the lien was claimed, the property was sold, and confirmation of sale, being opposed by A. R. Arnold, as owner of the property, was denied and the sale set aside, and plaintiff brings error. Affirmed.

[Note.--This case, in so far as it held that the filing of a materialman's lien statement within the time fixed by the statute is not necessary to effect a lien as between the original parties to the contract, has been overruled in Bryan v. Orient Lbr. Co., 156 P. 897 (not yet officially reported).--Reporter.]

Bridges & Vertrees, for plaintiff in error.

Dillard & Ellis, for defendants in error.

MATHEWS, C.

¶1 The facts in this case are undisputed and show that the South Texas Lumber Company, who will herein be styled as plaintiff, in February, 1909, sold to Epps and wife, who then owned a certain lot in the town of Hastings, certain building material for the purpose of erecting a dwelling house on said lot. On the 9th day of May, 1911, plaintiff filed suit against Epps and wife for a balance due for said material in the sum of $ 281.31, and alleged in its petition that it had a lien on the lot for said sum, and asked for judgment foreclosing said lien and for an order of sale to satisfy the judgment. No materialman's lien was ever fixed upon the property under the statutes for that purpose.

¶2 In September, 1911, Epps and wife sold the house and lot in controversy to A. R. Arnold, who will hereinafter be styled defendant, for a cash consideration of $ 2,000. On the 7th day of December, 1911, a personal judgment only was rendered against Epps and wife for the amount sued for; no decree being made to establish the lien or ordering a foreclosure as prayed for. On the 20th day of December, 1911, an execution was issued against Epps and wife, the same was levied on the property in controversy, and on the 15th day of February, 1912, said property was sold by the sheriff to one Schoolfield for $ 1,300. At the March term, 1912, of the district court plaintiff asked that the sale be confirmed. The defendant filed a motion opposing said confirmation, alleging that the property in controversy was purchased by him on the 11th day of September, 1911. Plaintiff, answering said motion, alleged that Arnold had notice that it had filed suit against Epps and wife upon its contract with them to furnish material for erecting a dwelling house on the property in controversy, and were seeking therein to establish their lien thereon. On the 9th day of September, 1912, the court sustained defendant Arnold's motion to vacate and set aside the sale of said property and refused to confirm the sale, and this case is here on appeal; the plaintiff complaining of the order of the court in sustaining the motion of Arnold to set aside the sale by the sheriff of the property in controversy.

¶3 We agree with plaintiff's contention that, in order to reach the property on which the material purchased was used to improve, and in order to subject the same to the payment of the debt so incurred, it is not necessary to have first obtained a judgment declaring a lien to exist, in favor of the plaintiff on the specific property and foreclosing the same, but it can be reached, in cases where an account is due for material furnished for the improvement of certain real property, by first reducing the account to a personal judgment, and then levying on said real property by an execution issued on said judgment, provided no superior interest of a third party has intervened.

¶4 It is also true that a materialman does not lose his lien merely because he fails to file the same as the statute provides. The filing of the statutory lien only protects him against third parties, and, while the property for which the material was furnished remains in the hands of the original party, the lien can be enforced against it as long as the account is not barred by the statute of limitation.

¶5 It appears to us that, as urged by defendant in his brief, the only vital questions in the case are: (1) What is meant by "purchase price," as used in section 3, art. 12, of the Constitution? and (2) was the pendency of plaintiff's action in the district court notice of anything that could affect the rights of defendant in the property in controversy?

¶6 That part of section 3, art. 12, of the Constitution applicable to this case is as follows:

"Provided that no property shall be exempt for any part of the purchase price while the same, or any part thereof, remains in the possession of the original vendee, or in possession of any purchaser from said vendee, with notice."

¶7 The question here presented is: Is a debt contracted for material used in the improvement of the homestead to be considered as constituting a part of the "purchase price" of said homestead? By the weight of all of the authorities brought to our attention we must answer in the negative.

¶8 The case of Smith v. Lackor, 23 Minn. 454, presents a case similar to the one at bar, and the court there said:

"The position of defendant's counsel that the debt contracted for the lumber which was used in the construction or erection of the dwelling house on the lot in question was a part of the purchase price paid for the homestead was distinctly repudiated by this court in Cogel v. Mickow, 11 Minn. 475 [Gil. 354], in which it was said, in reference to such a debt: 'It is no more a part of the purchase money [of the real estate] than the price of a fruit tree or a fence post, used for the improvement of the property, would be.' The thing to which the homestead right attaches, under the statute, is not the house, considered alone as personal property severed from the freehold, but the real estate interest of the owner in the land, which carries with it the dwelling as an appurtenance and part of the realty. Any debt contracted in the purchase of this real estate interest represents, in whole or in part, the purchase money of the property, but not debts incurred in making improvements or erections thereon of any kind. The indebtedness to Rohrer for lumber which was used in the erection of defendant's dwelling house constituted no part of the

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