Sanford v. Kunkel

• Decision Date: 23 April 1906
• Docket Number: 1685
• Citation: 30 Utah 379,85 P. 363
• Court: Utah Supreme Court
• Parties: SANFORD v. KUNKEL et al. (WALSH et al., interveners.)

85 P. 363

30 Utah 379

SANFORD v. KUNKEL et al. (WALSH et al., interveners.)

No. 1685

Supreme Court of Utah

April 23, 1906

APPEAL from District Court, Third District; C. W. Morse, Judge.

Action by Benjamin Sanford against Mark Kunkel and others, to foreclose a mechanic's lien, in which A. H. Walsh and an other intervene. From a judgment in favor of plaintiff and interveners for less than the relief demanded, they appeal.

REVERSED.

Patterson & Moyer for appellants.

APPELLANT'S POINTS.

In case buildings situate on premises covered by a lien are removed from such premises without the consent of the holder of the lien the lien follows the buildings so removed and attaches thereto in their new location and equity has power to enforce the same by proper order. (Partridge v. Hemenway, 89 Mich. 545, 50 N.E. 1084, 28 Am. St. Rep. 322; Hamlin v Parsons, 12 Minn. 59; Betz v. Muench [N.J Eq.], 13 A. 622; Turner v. Mebane, 110 N.C 413, 14 S.E. 974, 28 Am. St. Rep. 697; Loan & Trust Co. v. Parmalee, 5 S.D. 341, 58 N.W. 811; Dorr v. Dudderar, 88 Ill. 107; Hoskin v. Woodward, 45 Pa. 42; Latham v. Blakely, 70 N.C. 368; Bishop v. Honey, 34 Texas 245; Gas Co. v. Lyman, 62 Ill.App. 538.)

James Ingebretsen for respondents.

RESPONDENT'S POINTS.

A mechanic's lien can not be had or enforced against a building alone, separate from the land on which it stands where no statute expressly allows it. (Fathmen Co. v. Christophel, 60 Mo.App. 106; State v. Hailey, 71 Mo.App. 200; Mayes v. Murphy, 93 Mo.App. 37; Newman v. Biggs, 78 Mo.App. 675; Trich v. Norton, 10 Col. 337; Tracey v. Rogers, 69 Ill. 622; Chicago S. F. G. Co. v. Lyman, 62 Ill.App. 538; Smith v. Barnes, 38 Minn. 240; Buckout v. Swift, 27 Cal. 433; Hill v. Gwin, 51 Cal. 47; Huff v. Jolly, 41 Kansas 537; Early v. Burt, 68 Iowa 716; Kellogg v. Manufacturing Co., 1 Walsh 407; Dustin v. Crosby, 75 Maine 75; Babbott v. Condon, 27 N. J. Law 155; Railroad Co. v. Johnson, 2 Wash., 112; Wayne v. Brascoe, 38 Mich. 587; Jessup v. Stone, 13 Wis. 521; Gull Lumber Co. v. Briggs, 9 N.D. 485; Fetter v. Nelson, 51 Ky. 90; Presbyterian Church v. Jevne, 83 Ill. 261; Dutro v. Wilson, 5 Ohio St. 101; Sheer v. Cummings, 80 Tex. 294; Underhill v. Corwin, 15 Ill. 557.)

STRAUP, J. McCARTY, J., concurs. BARTCH, C. J., dissenting.

OPINION

STRAUP, J.

1. This is an action brought by Sanford against Kunkel, the Utah Lumber Company, and Charles E. Murphy, defendants, to foreclose a mechanic's lien. Appellants Cain and Walsh were made parties and intervened. Judgment was had in favor of defendants and against plaintiff and interveners. The appeal is on the judgment roll, without a bill of exceptions containing any evidence. The assignments relate only to the conclusions of law. The findings, so far as material, show: On August 1, 1903, Kunkel was the owner of lots 8, 9, and 10. He then entered into a contract with appellant Cain to furnish plans and specifications and to superintend the construction of two dwellings to be erected on said lots; on August 5th, with appellant Sanford to construct the cellar walls and to do the carpenter work; on August 3d, with appellant Walsh to do the plumbing; on August 5th, with Morrison Merrill & Co., to furnish lumber, hardware, and other material for the house on lot 10 and the south half of lot 9. Cain commenced his work on the 1st day of August, 1903, Walsh on the 3d, and Sanford on the 8th. The last work performed by them was on the 27th day of October, 1903. Morrison Merrill & Co., furnished the first material August 18, and the last October 26, 1903. The two buildings were erected on the said lots, one house substantially on lot 8 and the north half of lot 9, and the other on lot 10 and the south half of lot 9 without any fence or barrier between them and all of said land was necessary for the use and occupation of said buildings. Appellants Sanford, Walsh, and Cain performed labor and furnished material on both houses in pursuance of their contracts. When the building on lot 8 and the north half of lot 9 was almost finished and the contracts of appellants nearly completed, on or about the 12th day of September, 1903, the respondents, the Utah Lumber Company and Charles E. Murphy, its manager, without the knowledge or consent of Kunkel, the owner of the ground, or of the appellants, removed said building from said lot 8 and the north half of lot 9 to lots 4 and 3 adjoining and owned by the Utah Lumber Company, and there caused it to be attached to a brick foundation. On November 9, 1903, Sanford filed a notice of lien on lots 8, 9, and 10; Walsh on November 7, 1903; Cain on November 4 1903; and Morrison Merrill & Co. on November 26, 1903. Sanford on the 18th day of September, 1903, Walsh on the 24th day of September, and Cain on the 26th day of October, also filed notice of liens on lots 4 and 3, wherein, among other things it was stated that the building thereon was erected on lot 8 and north half of lot 9 for Kunkel, and that after it was substantially completed the Utah Lumber Company and Charles E. Murphy forcibly, wrongfully, and without the knowledge or consent of Kunkel or the lien claimants, removed it therefrom to lots 4 and 3. Morrison, Merrill & Co. assigned its claim to Cain. Kunkel defaulted. Appellants prayed that their liens be foreclosed against lots 8, 9, and 10, and, if the proceeds of sale be insufficient to satisfy them, that then the house wrongfully removed from lot 8 and the north half of lot 9 be sold and the proceeds applied on such deficiency, and that they be granted such other relief as in equity they may be entitled. The trial court decreed a foreclosure as to lots 8, 9, and 10. Because of the removal of the building from lot 8 and the north half of lot 9, and its being attached to a brick foundation on lots 4 and 3, the court ruled the lien on the building was lost and did not follow it to its new location, hence denied appellants all relief with respect thereto, and merely gave them a deficiency judgment against Kunkel. This ruling of the court presents the matter for review.

2. Section 1372 of the mechanic's liens statute (Rev. St. 1898) provides:

"Mechanics, materialmen, contractors, subcontractors, builders and all persons of every class performing labor upon or furnishing materials to be used in the construction, etc., of any building, etc., and also architects, etc., who have furnished designs, plats, plans, maps, specifications, drawings, estimates of cost, or superintendence, etc., shall have a lien upon the property upon which they have rendered service, or performed labor, or furnished materials, for the value of such service rendered, labor done, or materials furnished, by each respectively, whether at the instance of the owner or of any other person acting by his authority or under him as agent, contractor, or otherwise; provided, that a lien or liens shall attach only to such interest as the owner or lessee may have in the real estate."

Section 1379:

"The liens granted by this chapter shall extend to and cover so much of the land whereon such building, structure or improvement shall be made, as may be necessary for the convenient use and occupation of such building, structure or improvement, and the same shall be subject to such liens; and in case any such building shall occupy two or more lots or other subdivisions of land, such lots or other subdivisions shall be deemed one lot for the purposes of this chapter," etc.

Section 1384:

"The liens provided for herein are preferred to any lien, mortgage, or other incumbrance which may have attached subsequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished; also to any lien, mortgage, or other incumbrance of which the lienholder had no notice and which was unrecorded at the time the building, improvement, or structure was commenced, work done, or materials commenced to be furnished."

Section 1385:

"The liens herein provided shall relate back to and take effect as of the time of the commencement to do work upon and furnish materials on the ground for the structure or improvement, and shall have priority over any lien or incumbrance subsequently intervening, except a lien herein provided for of the same class, or which may have been created prior thereto, which was not then recorded and of which the lienor under this chapter did have actual notice."

Section 1386 provides that the original contractor, within sixty days after the completion of his contract, and a subcontractor within forty days after furnishing the last material or performing the last labor for any building, shall file for record a notice of intention to hold and claim a lien. Section 1392 provides:

"The court shall cause the property to be sold in satisfaction of the liens and costs, as in the case of foreclosure of mortgages, subject to the right of redemption of the owner and creditors as provided by law," etc.

A finding was made that, at the time of the removal of the building, appellants had no notice of lien filed of record bit it will be observed that, under the statute and as construed by this court, the lien has its inception from the time of the commencement of the work and the furnishing of materials, and, by relation, takes effect as of that date, and is given priority over any lien or incumbrance subsequently intervening, or which may have been created prior thereto which was not recorded and of which the lien claimants had not actual notice. (Culmer v. Caine, 22 Utah 216, 61 P. 1008; Fields v. Daisy Min. Co., 25 Utah 76, 69 P. 528.) Appellants were not required to file their notice of liens until sixty days after the completion of their contracts, if original contractors, or within forty days after...