Sheehy v. Fulton

• Citation: 57 N.W. 395,38 Neb. 691
• Parties: SHEEHY v. FULTON ET AL.
• Decision Date: 03 January 1894
• Court: Nebraska Supreme Court

38 Neb. 691

57 N.W. 395

SHEEHY

v.FULTON ET AL.

Supreme Court of Nebraska.

Jan. 3, 1894.

Syllabus by the Court.

1. The vendor in an executory contract for the sale of land subjects his estate in the property to a mechanic's lien for improvements erected thereon by the vendee, where his agreement with the vendee is of such character as to require the construction of the building, and to constitute the vendee his agent in such construction.

2. Persons claiming mechanics' liens are not, in such cases, restricted by the terms of the written contract of sale, but may, by parol evidence, establish the true terms of the contract.

3. Where a verbal promise is made, upon sufficient consideration, to answer for the debt of another, and subsequently a memorandum is executed sufficient to answer the requirements of the statute of frauds, such promise may be enforced, although no new consideration passes upon the execution of the written memorandum.

Appeal from district court, Lancaster county; A. W. Field, Judge.

Action by James F. Sheehy against Hugh Fulton and others to enforce a vendor's lien on realty. From the decree rendered, plaintiff appeals. Affirmed.Marquett, Deweese & Hall, for appellant.

F. A. Boehmer, W. A. Williams, Stevens, Love, Cochran & Teeters, Talbot & Bryan, and T. S. Allen, for appellees.

IRVINE, C.

Upon September 25, 1890, the plaintiff contracted to sell a lot in the city of Lincoln to the defendant Fulton, $5 of the purchase price being paid in cash, and the remainder, $3,495, to be paid November 1, 1890. The construction of a building upon the lot was begun by Fulton a few days after the execution of this contract. This suit was brought by the plaintiff to foreclose his lien for the purchase money. A number of defendants set up mechanics' liens growing out of the performance of labor, and furnishing of material, for the building. The decree of the district court established these liens as prior to the plaintiff's lien for the unpaid purchase money. The principal controversy is as to the propriety of the decree in so subordinating the vendor's lien to the mechanics' liens. The mechanics' lienors, to support the decree, rely upon the doctrine of Manufacturing Co. v. Kountze, 30 Neb. 718, 46 N. W. 1123. The plaintiff contends--First, that no agreement charging the owner of the fee appears in the written contract of sale, and that parol evidence was inadmissible to establish such agreement; secondly, that the evidence admitted was insufficient to show such an agreement.

As to the first contention, it is to be observed that the controversy here is not between the parties to the written contract. The lienors, being strangers to that contract, are not bound by the terms of the writing, but they are at liberty to enforce the real understanding and contract between the parties; the question being, not whether there was an agreement between the vendor and vendee capable of enforcement between them, but whether the vendor, by his acts, had constituted himself a principal in the construction of the building, and so charged his estate in the land.

As a preliminary to a consideration of the other branch of the question,--that is, the sufficiency of the evidence to bring the case within the rule of Manufacturing Co. v. Kountze,--we think it is proper to say that in some instances that rule seems to have been misunderstood. An impression seems to have been created that the general effect of Manufacturing Co. v. Kountze, and Millsap v. Ball, 30 Neb. 728, 46 N. W. 1125, was to charge the vendor's estate in every case where, by the nature of his contract or otherwise, he has knowingly permitted the erection of a building by the vendee upon the land sold. A proper understanding of these cases leads to no such conclusion. The true rule is well stated in the case of Pickens v. Investment Co., (Neb.) 55 N. W. 947, as follows: “By this it was not held that where the owner of the land sells it, and simply takes back a mortgage for the purchase price, without in any way becoming a party to a contract for the erection of improvements, one who furnishes materials or labor upon a contract with the vendee alone can assert thereon a lien superior to that of the said mortgage, duly recorded. Quite to the contrary, it has been recently held by this court, in Henry & Coatsworth Co. v. Bond, (Neb.) 55 N. W. 643, that where one...