White v. Kincade

• Decision Date: 08 May 1915
• Docket Number: 19,469
• Citation: 148 P. 607,95 Kan. 466
• Parties: L. IRENE WHITE, Appellee, v. M. L. KINCADE et al. (THOMAS LYNN, Appellant)
• Court: Kansas Supreme Court

148 P. 607

95 Kan. 466

L. IRENE WHITE, Appellee, v. M. L. KINCADE et al. (THOMAS LYNN, Appellant)

No. 19,469

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Finney district court; GEORGE J. DOWNER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MECHANIC'S LIEN--Mortgages--Priorities. An owner who contracted to sell a tract of land placed the purchaser in possession of the same, and before the transaction was closed and the legal title transferred he authorized the purchaser to have certain improvements made on the land, and the purchaser contracted for and had the improvements made and those who furnished the material and labor therefor claimed a lien on the land. After the owner had authorized the improvements he caused a deed, which his grantor had executed in blank, to be delivered to the purchaser with the name of the purchaser inserted therein as grantee, so that on the record the land appeared to have been directly conveyed from his grantor to his vendee, and at the same time he took a mortgage from the purchaser for the balance of the purchase price. Held, that the mechanic's lien is prior to the mortgage lien executed by the purchaser and that the mechanic's lien covered the interest which both the owner and the purchaser held in the land.

2. SAME--Mistake in Stipulation--Equitable Powers of Court. It is competent for a court, in the interest of equity and justice, to relieve parties from stipulations inadvertently mistakenly or fraudulently made and entered into by them. The exercise of this power is largely a matter of discretion, and it is held that there was no abuse of discretion in the relief granted in this instance.

R. W. Hoskinson, and Albert Hoskinson, both of Garden City, for the appellant.

William Easton Hutchison, and C. E. Vance, both of Garden City, for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought by L. Irene White to foreclose a mechanic's lien on a tract of land upon which a well had been sunk by the United Well Works. It appears that the land was purchased by M. L. Kincade from H. C. Wiley on December 8, 1910, but the conveyance to him was not recorded until October 23, 1911. Kincade contracted for the well on August 29, 1911, and, according to a stipulation, work was commenced on the well on September 8 and it was completed on September 19, but it is claimed that there was an error in the stipulation and that the date of completion was October 19, 1911. The work and labor expended on the well amounted to $ 4148.80 and all of this amount was paid by Kincade except $ 2545.56, for which he gave his note falling due December 12, 1912, and as it was not paid a mechanic's lien statement was filed January 20, 1912. The note was transferred by the United Well Works to the plaintiff. It appears that Wiley purchased the land in question from E. J. Dierks, who executed a deed on December 17, 1910, but no grantee was named in the conveyance, and when Wiley subsequently sold the land to Kincade he entered Kincade's name as grantee in the Dierks' deed and made a delivery of the instrument on October 21, 1911. On the same day Kincade executed four notes in favor of Wiley, each for $ 2000, due in one, two, three and four years respectively after date, and one note for $ 2726.20 due five years after date, and these notes were secured by a mortgage on the land which was executed on October 21, 1911, and recorded on October 23, 1911. The notes and the mortgage were transferred by Wiley to Thomas Lynn, the defendant, who answered and set up the claim that his mortgage lien upon the land was prior and superior to the mechanic's lien of the plaintiff. The judgment of the court was that plaintiff was entitled to a first lien for $ 2929.83, and that the defendant Lynn should have a second lien on the land for $ 12,032. Lynn complains, and the priority of the liens is the only question presented on this appeal.

It is argued that the debt secured by the mortgage was for the unpaid purchase price of the land, but the defendant in his answer made no such claim but based his right to a lien alone on the mortgage as it was recorded on October 23, 1911. It appears that Wiley allowed the record title to remain in Dierks until the conveyance was made to Kincade, and from the record it appeared that Kincade became the owner of the land at the date of the Dierks' deed and that it was transferred directly from Dierks to Kincade. While the testimony is to the effect that Wiley purchased the land from Dierks and had an equitable title to it when...