Wentworth v. Tubbs
| Decision Date | 01 June 1893 |
| Citation | 53 Minn. 388 |
| Parties | COLYER S. WENTWORTH <I>et al.</I> <I>vs.</I> JEROME F. TUBBS <I>et al.</I> |
| Court | Minnesota Supreme Court |
On February 1, 1890, the defendant Jerome F. Tubbs employed the defendant Charles S. Sedgwick, an architect, to make plans and specifications for a building which he proposed to construct on lot twelve (12) on block ten (10) in Penniman's Addition to Minneapolis. For several months from that time the architect was engaged at his office in that work. On March 13, 1890, Tubbs mortgaged the property to Mary A. Topliff for $13,000. This mortgage was recorded March 26, 1890. Nothing was done on the lot prior to March 27, 1890, to indicate or suggest that a building was to be erected on it. Soon after that day, work was commenced and prosecuted for a year thereafter. Above thirty persons did work and furnished materials, and they and Sedgwick all filed liens. On August 5, 1890, Mary A. Topliff loaned to Tubbs the further sum of $10,000 to pay for work and materials, and took a second mortgage on the property. This second mortgage was recorded August 11, 1890. These mortgages bore interest at the rate of ten per cent. a year.
At the time of making this second mortgage, and as a part of the transaction, it was agreed between the parties that the money should be paid upon the liens on the building. Of this sum $9,581.67 was in fact so paid on liens. A partial payment was made to each lienholder. The lienors so receiving payments each agreed, in consideration of such part payment, that both Topliff mortgages should be prior and paramount to the balance of his lien. A large number, but not all, accepted partial payment and so agreed. Mrs. Topliff foreclosed her second mortgage under the power of sale therein, and on August 10, 1891, bid in the property for $11,140.59.
The plaintiffs, Coyler S. Wentworth and William G. Graham, partners, contracted with Tubbs on August 20, 1890, to furnish and set in the building, steam heating apparatus, valued at $1,560.90. They did the work, filed a lien, took no partial payment and made no release to Mrs. Topliff. On July 9, 1891, they commenced this action to foreclose their lien. The owner Tubbs, the mortgagee Topliff, the architect Sedgwick and all the lien claimants were made defendants. Sedgwick's lien was for $600, on which $150 had been paid by Tubbs. He and eight other lien claimants, defendants, having liens amounting to $1,586.19 took no partial payment from, and made no agreement with, Mrs. Topliff. The trial court held that plaintiff's lien for $1,560.90, Sedgwick's lien for $450, these eight other liens for $1,586.19, and Mrs. Topliff's second mortgage to the amount of $9,581.67 were co-ordinate and subject to the first mortgage, but paramount to all the other liens whose holders had so agreed with Mrs. Topliff. The property was adjudged to be sold subject to Mrs. Topliff's first mortgage, and the proceeds applied ratably on these paramount claims, and the excess, if any, upon the other liens. Defendant Sedgwick alone appealed. He appealed October 30, 1892, from so much of the judgment as decreed his lien subject to the first mortgage and that $9,581.67 of the second mortgage was co-ordinate with his lien.
On the argument in this court, subsequent facts were conceded by the parties, viz. that on August 30, 1892, the premises were sold under the judgment appealed from, to defendant Wheaton for $150; the sale was reported and duly confirmed. Meantime Mary A. Topliff had on September 7, 1891, foreclosed her first mortgage under the power therein, and bid in the property for the sum due on it. Wheaton filed notice and redeemed September 12, 1892, paying her $16,795.67. No other lien claimant redeemed. Subsequently certain judgment creditors of Tubbs who had filed notices, redeemed from Wheaton, and the title now stands on the foreclosure of the first mortgage and the redemptions so made.
Roberts & Baxter, for appellant.
Daniel Fish, for respondent.
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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. Laws 1889, ch. 200, § 8, 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...
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