Wagar v. Briscoe

• Decision Date: 09 April 1878
• Citation: 38 Mich. 587
• Court: Michigan Supreme Court
• Parties: Humphrey R. Wagar v. Benjamin Briscoe and Andrew J. Brow

38 Mich. 587

Humphrey R. Wagar v. Benjamin Briscoe and Andrew J. Brow

Supreme Court of Michigan

April 9, 1878

Submitted February 1, 1878

Error to Wayne.

Replevin. Plaintiff brings error.

Judgment affirmed with costs.

Slesinger & Frost and Alfred Russell for plaintiffs in error.

Prentis & Fox for defendants in error. A sale under a mechanics' lien must be shown to have complied with the decree and the statute authorizing such sale, Goodright v. Gilbert, 1 Yeates 300; Wheelwright v Depeyster, 1 Johns. 471; Carter v. Simpson, 7 id. 535; Com. v. Kennard, 8 Pick. 133.

OPINION

Graves J.

Wagar brought replevin to obtain two buildings which one William Webster had erected on posts upon lots 18 and 19 of Briscoe's subdivision of lots 64 and 65 of the subdivision of the Porter farm in the city of Detroit. And he based his right exclusively upon a title made to him by sale in proceedings taken for the Wagar Lumber Company to enforce an alleged lien for materials furnished by the company to Webster for the construction of said buildings.

The court directed a verdict for defendants and Wagar brought error. The record suggests many questions of importance and a number of which are noticed in the able briefs which have been submitted. There is no occasion however for considering these various topics or even for noticing several objections which occur to the lien proceedings.

October 26, 1874, Briscoe then being owner, agreed in writing to transfer his ownership of the lots to Webster on certain specified terms and not otherwise. Webster was to pay him $ 1900 in five equal annual installments of which the first was to be made October 26, 1875. He was likewise to pay interest at seven per cent semi-annually on the first days of January and July, and discharge all taxes and assessments subsequent to the agreement. Upon payment being made as specified Briscoe agreed convey in fee simple clear of all liens and incumbrances except such as might accrue after the agreement by or through the acts or negligence of Webster. It was also mutually agreed that Webster might have possession October 27, 1874, and should keep the property in as good condition as it was then in, until payment of the purchase price; and in case Webster should fail to perform his undertakings or any part of them, that Briscoe should have the right thereupon to declare the contract void and to retain whatever should have been paid and all improvements and to treat Webster as tenant holding over without permission, and to enter, take possession and remove him.

Webster went into possession under this contract and paid $ 20 upon it: but being unable to pay more he surrendered the contract and possession to Briscoe some time in the spring of 1875. The precise time is not shown. According to the record the transaction as between Briscoe and Webster was completely effaced.

Briscoe then conveyed the lots by deed to Brow, and so far as appears neither was aware that the lumber company claimed any lien on the lots or on the erections upon them. All proceedings for creating a lien and in its prosecution were directed against Webster. Neither Briscoe nor Brow was notified.

The buildings were put up by Webster between the date of his contract of purchase, October 26, 1874, and its surrender in the spring of 1875.

Some time in the same spring, but exactly when does not appear, the Lumber Company by Ephraim C. Wagar who represented himself as being its agent, filed a petition in the circuit court for Wayne county under ch. 126 of the Revised Statutes of 1846 and being part of Comp. L., ch. 215 to enforce an alleged lien which it claimed to have established and to hold on said lots 18 and 19 and the buildings thereon on account of materials it had furnished to Webster for said buildings under a verbal contract for such materials which it had made with him on the 24th of October, 1874, being two days before Briscoe agreed to sell to him.

The petition charged that Webster then owned the lots; that the Company furnished the materials pursuant to the agreement of the 24th of October; that when the petition was filed, a time as already stated which does not appear, the price had been due more than sixty days and remained unpaid; that on February 15, 1875, the Company filed with the register of deeds of Wayne county a verified certificate describing the land where the buildings were, the terms of the contract with Webster and the amount due exclusive of credits; that the certificate was recorded in such office on the same day and a verified duplicate served on Webster personally.

It then prayed a sale of the lots and buildings to satisfy the lien and for such other or further relief as might be proper. It was verified April 3d, 1875. Subsequently, but at what precise time does not appear, Webster answered. But the answer simply consisted of denials that the Company was incorporated under the laws of this State; that Ephraim C. Wagar was its authorized agent; that he, Webster, entered into the contract specified; that there was due to the Company $ 864.64 or any sum from him, and that sixty days had elapsed after the coming due of such debt.

June 4th, 1875, the circuit court appears to have made a decree which after reciting that it appeared on examination of the several claims presented that there was due from Webster to the company $ 894.90 principal and interest: to William Plumer, an intervening claimant, $ 409.33 principal and interest, and to Aaron D. Mitchell, another intervening claimant, $ 76.75 principal and interest; that said several sums were liens upon the premises mentioned and described in the petition of the Company as had been alleged in the several petitions:--proceeded to adjudge that the Company, Plumer and Mitchell were respectively entitled to the sums so appearing due from Webster, and that a lien existed upon the premises aforesaid in favor of said parties, pursuant to the statute, and that all and singular the premises described as being certain buildings on said lots 18 and 19, and all right, title and interest Webster had or might have in said lots should be sold at public auction at the court house in Detroit by James H. Pound, Jr., one of the circuit court commissioners for Wayne county, twelve days after notice of the time and place of sale given by the commissioner; that at such sale the commissioner should give the purchaser a certificate as in case of sales on execution, etc.

December 9, 1875, being more than six months after making of the decree, the court upon a stipulation to that end by the solicitors for the Company and for Webster and for the intervening claimants Plumer and Mitchell, entered a further order amending the decree as of its date so as to preclude sale of Webster's interest in the lots, and order sale of the buildings "separate and apart from the right, title and interest of the said defendant in and to said several lots."

The deed given by the commissioner as printed in the record has but one correct date. It is there printed as having been given January 10, 1875, and acknowledged January 11th, 1875, upon a sale made January 4th, 1875, under an order of December 9th, 1875.

The sale may be assumed to have been made January 4th, 1876.

The deed recited that notice of the time and place of sale had been given by advertising the same for thirteen successive days once in each day in a Detroit newspaper, and that...