Sontag v. Abbott, 18381
| Decision Date | 28 September 1959 |
| Docket Number | No. 18381,18381 |
| Citation | 344 P.2d 961,140 Colo. 351 |
| Parties | Samuel H. SONTAG, Plaintiff in Error, v. Russell E. ABBOTT, Irene A. Wherry, and Howard E. Abbott, doing business under the style and firm name of The Abbott Lumber Company, a copartnership; Robert Herbertson, doing business as Herbertson Sand and Gravel Company; and Charles E. McNeil, Defendants in Error. |
| Court | Colorado Supreme Court |
Harry L. Silverman, Sheldon Silverman, Denver, for plaintiff in error.
Robert B. Lee, M. O. Shivers, Jr., Englewood, for defendants in error, Russell E. Abbott, Irene A. Wherry and Howard E. Abbott, doing business under the style and firm name of Abbott Lumber Co., a copartnership.
Walter S. Erwin, Littleton, and Richard N. Graham, Englewood, for defendant in error, Robert Herbertson, doing business as Herbertson Sand and Gravel Co.
Richard N. Graham, Englewood, for defendant in error, Charles E. McNeil.
This case involves conflicting claims between a mortgagee of real estate and holders of liens for labor and material on the mortgaged property. Plaintiff in error will be referred to by name, and defendants in error will be mentioned as lien claimants or by name.
The case was submitted to the trial court upon an agreed statement of facts from which it appears that on June 14, 1955, James E. King entered into a written contract with the Klawitters in which the latter agreed to sell to him Lots 19 and 20, Block 10, Stark Brothers Woodlawn Addition in Littleton, Colorado. At the time of signing the contract King paid $100 on the purchase price, and it was provided in the contract that $5,900 in cash be paid on delivery of the warranty deed, at which time a $2,000 note secured by a second mortgage would be executed by the purchaser. The contract provided, inter alia. that:
'Time of the essence hereof, and if any payment or any other condition hereof is not made, tendered or performed by purchaser as herein provided, then this contract shall be void and of no effect, and both parties hereto released from all obligations hereunder, and all payments made hereon shall be retained by the undersigned agents as liquidated damages; provided, however, that in event of such forfeiture any payment made hereunder shall be divided between said agent and seller, one-half thereof to the agent but not to exceed a sum equal to the regular commission and the balance to the seller.'
July 27, 1955, King received from the Klawitters a warranty deed to said property. At the same time he executed and delivered his note for $10,000 to Samuel H. Sontag, and secured the same by a first deed of trust upon Lot 19 only, of the property above described. The trust deed was recorded July 28, 1955, and contained, in addition to the legal description of said Lot 19, the following language concerning the property covered: 'together with improvements now thereon and improvements hereafter constructed thereon.' The sum of $5,900 paid by King to the Klawitters at the time the deed to him was delivered was made from the moneys borrowed by him from Sontag. All but $104 of the balance of the so-called 'construction loan' was paid out for construction purposes in the erection of improvements on said Lot 19.
July 26, 1955, the day prior to the execution and delivery of the warranty deed to King, he ordered building material and supplies from the partners doing business as Abbott Lumber Company, who sold the same to him with the understanding that they were to be used in the erection of improvements on Lot 19. The materials were delivered to the lot on July 26, 1955. Thereafter, additional materials were furnished on the order of King who failed to pay the full price thereof, and the Abbott Lumber Company filed a statement of lien for the sum of $2,868.08, being the balance due for materials which went into the improvements on the land. King abandoned the construction of the improvements before completion thereof and 'a substantial sum of additional money was required to complete the said improvements.'
Sontag foreclosed his first deed of trust on the premises through the public trustee, and, subsequent to the commencement of this action in the trial court, he has acquired title through a trustee's deed.
The instant action was filed by the partners doing business as the Abbott Lumber Company to foreclose their lien for materials. Sontag was made a defendant in the action and Herbertson and McNeil, who had filed liens for labor and material furnished by them in erecting improvements on the said Lot 19, were joined as defendants. The labor and materials furnished by Herbertson and McNeil were also supplied on the order of King.
Abbott Lumber Company alleged that their lien was superior to any right claimed by defendants, and the prayer of the complaint was for appropriate relief by foreclosure. The Findings, Order and Judgment entered by the trial court contains, inter alia, the following:
The lien claimants who were made defendants were upheld in their contention that their liens were superior to the lien of Sontag, and they were placed on an equal footing with the lumber compeny in so far as priority of liens is concerned. Sontag seeks review of this judgment by writ of error.
Counsel for Sontag contend that King, who held an option to purchase at the time he caused materials to be delivered by the lien claimant lumber company, was not an 'owner' of the property within the meaning of the statute (C.R.S. '53, 86-3-1) and he therefore could not burden the real estate with a materialman's lien by ordering the delivery of building material on the property. They further argue, as ground for reversal, that the term 'commencement of work' as used in the statute in determining the effective date of a mechanic's lien, means actual physical work or labor on the ground, which can readily be seen and recognized as the commencement of a building; that delivery of material to the lot in question was insufficient to amount to 'commencement of work' and that no work was actually begun until after the recording of the deed of trust in favor of Sontag. They also argue that the lien of the deed of trust was a 'purchase money' lien by reason of which it should be preferred.
C.R.S. '53, 86-3-1, generally provides that a lien shall be had for labor performed,...
To continue reading
Request your trial
-
Diversified Mortg. Investors v. Lloyd D. Blaylock General Contractor, Inc.
...v. Minten, 181 Ark. 700, 27 S.W.2d 1011 (1930); Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S.W.2d 726 (1928); Sontag v. Abbott, 140 Colo. 351, 344 P.2d 961 (1959); Society Linnea v. Wilbois, 113 N.W.2d 603 (Iowa 1962); Wayne Building & Loan Co. of Wooster v. Yarborough, 228 N.E.2d 841......
-
Bankers Trust Co. v. El Paso Pre-Cast Co.
...this definition, it is clear by decisions of this court that an architect's and engineer's preliminary work is lienable. Sontag v. Abbott, 140 Colo. 351, 344 P.2d 961, citing Park Lane v. Fisher, 89 Colo. 591, 5 P.2d 577; Annot., 28 A.L.R.3d 1014. Consequently, Jacobs and Lovejoy & Williams......
-
Carolina Builders Corp. v. Howard-Veasey Homes, Inc.
...for the purpose of statutory materialmen's liens. Douglass, supra at 927 n. 9, 929-30 n. 21, 933 n. 43 citing, e.g., Sontag v. Abbott, 140 Colo. 351, 344 P.2d 961 (1959); Service Lumber & Supply Co. v. Cox, 98 Fla. 405, 123 So. 820 (1929); Northwestern Nat'l Bank v. Metro Center, 303 N.W.2d......
-
In re Regan
...§ 38-22-106, C.R.S. (2006) (requiring that all liens relate back to the time of the commencement of the work); Sontag v. Abbott, 140 Colo. 351, 358, 344 P.2d 961, 964 (1959) (liens begin at the commencement of the work); cf. 1C Cathy Stricklin Krendl & James R. Krendl, Colo. Prac. Series, M......