Wentworth v. Tubbs

• Decision Date: 01 June 1893
• Citation: 55 N.W. 543,53 Minn. 388
• Parties: WENTWORTH ET AL. v TUBBS ET AL.
• Court: Minnesota Supreme Court

53 Minn. 388

55 N.W. 543

WENTWORTH ET AL.vTUBBS ET AL.

Supreme Court of Minnesota.

June 1, 1893.

(Syllabus by the Court.)

1. As respects the date of acquiring a lien, the term “furnish,” as used in the mechanic's lien law, means furnished on the premises; and the liens of all mechanics and material men attach as of the date of the performance of the first work, or the delivery of the first material on the ground; that is, from the commencement of the improvement on the land.

2. Upon the facts found, a mortgagee was not entitled to be subrogated to the rights of the holders of certain lienable claims against the mortgaged premises, which he paid with the proceeds of the mortgage.

Appeal from district court, Hennepin county; Thomas Canty, Judge.

Action to enforce a mechanic's lien by Colyer T. Wentworth and others, copartners, as C. T. Wentworth & Co., against Jerome F. Tubbs and others. From the judgment entered, defendant Charles S. Sedgwick appeals. Affirmed.

Roberts & Baxter, for appellant.

Taylor & Woodard, for respondents C. T. Wentworth & Co. Daniel Fish, for respondent Mary F. Topliff.

MITCHELL, J.

This action, which was to foreclose a mechanic's lien, is brought here on the findings of the court, without any case or bill of exceptions, and hence the only question is whether the conclusions of law are justified by the findings of fact. Tubbs is the owner of the premises, who contracted for the construction of the building. Topliff is a mortgagee of the premises, and the other defendants and the plaintiff claim liens for labor and material performed or furnished for the construction of the building. As Sedgwick is the only appellant, and as his assignments of error relate only to the decision of the court in favor of Topliff, we have only to consider the relative rights of these two parties.

Sedgwick claims a lien for labor and skill performed and furnished, at the request of Tubbs, in preparing plans for the building, and in superintending its construction. The court finds “that he commenced to draw the plans on the 1st of February, 1890, but that this work was then commenced in his office, and not upon the ground; that there was nothing upon the premises up to May 26, 1890, to indicate that any architect had been employed for any purpose in connection with the premises, or for the purpose of erecting any building or structure thereon; and that up to said time said architect performed no labor, services, or skill upon said premises.” The court also finds that “after said 26th of May, 1890, said Tubbs commenced the erection of a building on said lot.” We construe this as meaning that no work had been commenced and no labor performed or materials furnished on the premises by any one until after May 26th.

There is a finding that Tubbs caused an excavation to be made on the lot about March 1, 1890, but there is none as to its extent and character, or that it had any relation to the erection of this building; hence we deem the finding wholly immaterial.

Topliff's claim is based on two mortgages on the premises, executed by Tubbs,-one for $13,000, executed March 13, 1890, and recorded on the 26th of the same month; and the other for $10,000, executed August 5, 1890, while the building was in process of erection, and recorded the 11th of the same month.

1. Appellant's first assignment of error is that the court erred in holding that his lien was inferior and subordinate to the lien of this first mortgage. This presents the question when appellant's lien attached, his contention being that it was acquired February 1, 1890, when he commenced drawing the plans for the building in his office. This involves the construction of the statute. The mechanic's lien law nowhere in express terms declares when a lien attaches. Section 8 of the act requires that the statement filed shall contain the time when the first and last items of labor or material were furnished, and provides that the statement, when filed, “shall operate to continue such lien during all the period of time from the time of the furnishing of the first item of such labor, etc., until the expiration of one year after the time of furnishing the last item of the same.” It is on this provision that appellant relies for support for his contention. The tenth section of the act, in effect, provides that all liens for labor, material, etc., furnished for the construction of a building, without regard to the relative dates at which it was furnished, shall be co-ordinate, and without priority one over the other. The time when a lien is to be considered as acquired depends upon the statute authorizing the remedy. The statutes are not uniform on the subject. The larger number fix the commencement of the work on the premises-the first labor done or materials furnished on the ground-as the date when the mechanic's or material man's lien attaches. This is exceedingly fair and liberal to the mechanic, especially under our statute making all liens co-ordinate; so that all who furnish material or labor at any time during the process of construction of the building get a preference over all other liens of a date posterior to “the commencement of improvement on the land” by the one who performs the first labor or furnishes the first material on the ground. Gardner v. Leck, (Minn.) 54 N. W. Rep. 746. This works no injustice to any one dealing with the property, as the work itself is notice to all of the mechanics' claims. It enables them by ocular examination to ascertain whether they can do so safely.

But, on the other hand, it would be...