St. John's First Lutheran Church in Milbank v. Storsteen, s. 9623

• Decision Date: 23 August 1957
• Docket Number: Nos. 9623,9635,s. 9623
• Citation: 77 S.D. 33,84 N.W.2d 725
• Parties: ST. JOHN'S FIRST LUTHERAN CHURCH IN MILBANK, South Dakota, Plaintiff and Cross-Appellant, v. J. A. STORSTEEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 725

84 N.W.2d 725

77 S.D. 33

ST. JOHN'S FIRST LUTHERAN CHURCH IN MILBANK, South Dakota, Plaintiff and Cross-Appellant, v. J. A. STORSTEEN, Defendant and Appellant.

Nos. 9623, 9635.

Supreme Court of South Dakota.

Aug. 23, 1957.

Rehearing Denied Sept. 13, 1957.

F. Stearns Tait, Milbank, for defendnat and appellant.

Bicknell, Holland & Delaney, Webster, for plaintiff and cross-appellant.

RENTTO, Judge.

This is a quiet title action instituted pursuant to the provisions of SDC 37.15 by the plaintiff church, a religious corporation, involving the real estate which is its church structure. By his counterclaim the defendant asked judgment in the sum of $783.37 for services and materials furnished by him in the construction of the foundation and basement of the church and in placing the building thereon. He also sought enforcement of a statutory mechanic's lien which he claimed for the value of the items furnished.

The trial court quieted the title of the church but awarded the defendant a judgment for $283.37 and granted foreclosure of his mechanic's lien. The defendant as appellant appeals only from that part of the judgment which awarded him $283.37, contending that he should have been allowed all that he asked--the sum of $783.37. The church as cross-appellant appeals only from that part of the judgment which awarded the defendant $283.37 and granted foreclosure of his mechanic's lien. It is the claim of the church that the defendant has no right to a statutory mechanic's lien and that he is entitled to no recovery in this action. Another portion of the judgment is questioned by appellant in his assignments of error and argument, but the limited scope of his appeal eliminates this from our consideration. SDC 33.0703; First National Bank of Aberdeen v. Cranmer, 42 S.D. 404, 175 N.W. 881.

In October 1952 the defendant and 35 other members, by resignation, terminated their membership in the American Lutheran Church and formed a new church known as St. John's First Lutheran Church. This group remained an unincorporated association until February 19, 1954 when it was incorporated as St. John's First Lutheran Church in Milbank, South Dakota. The defendant was very active and influential in the unincorporated association. He was chairman of the meeting at which its officers were elected and acted as chairman of the organization and of the congregation and its building committee. While he remained a member of the church after its incorporation he was not active in its affairs.

Three other members served with the defendant on the building committee. Through its efforts lots were secured and a church structure acquired and moved thereon. This was done when the church was an unincorporated association. The title to the property was originally in the church trustees. During the period of construction they, at the suggestion of the defendant, conveyed it to the association. The plaintiff corporation acquired it before the commencement of this litigation. The members of the building committee appear to have been the most active members of the association and the largest contributors of financial support. While their contributions of money were somewhere near equal, defendant was the most active member of the committee. In addition to contributions of money each of the members of the committee, as well as other members of the association, contributed labor and material in varying amounts in getting their new church home ready for use by the association. The materials and services so furnished by the defendant are the basis of his claim in this action.

Defendant in his counterclaim alleges that the items for which he claims a lien were furnished under an implied contract. There is no contention that he did so under an express contract. It is the position of the church that the items involved were not furnished under a contract either express or implied, but that they were furnished as a voluntary contribution with the understanding that defendant would be reimbursed only for the materials furnished if and when funds for this purpose were available. The court found that the defendant voluntarily contributed to the association the items for which he claims a lien. It further found that the work, labor and material so contributed by the defendant were knowingly accepted, retained and used by the corporation after its formal incorporation. On these findings it concluded that defendant was entitled to judgment against the church corporation and awarded him a statutory mechanic's lien. The church assigns this as error contending that the conclusions and judgment are not sustained by the findings.

Mechanics' liens are a statutory creation. SDC 39.07. Under the provisions of our law it is essential that the items for which a lien is claimed be furnished under a contract either express or implied. Fritschel v. Grosshauser, 24 S.D. 129, 123 N.W. 698; Squier v. Mitchell, 32 S.D. 342, 143 N.W. 277; Keeley...