Wood v. Dill

• Decision Date: 01 January 1896
• Docket Number: 71
• Citation: 3 Kan.App. 484,43 P. 822
• Parties: FRANK WOOD, as Trustee, etc., v. W. W. DILL et al
• Court: Kansas Court of Appeals

43 P. 822

3 Kan.App. 484

FRANK WOOD, as Trustee, etc., v. W. W. DILL et al

No. 71

Court of Appeals of Kansas Southern Department, Central Division

January 1, 1896

Opinion Filed February 6, 1896.

MEMORANDUM.--Error from Sedgwick district court; C. REED judge. Action by The Farmers Loan and Trust Company against W. W. Dill and others to enforce a mechanic's lien. Judgment against Frank Wood, as trustee, etc. He brings the case to this court. Reversed. The opinion herein, filed February 6, 1896, states the material facts.

Judgment reversed and cause remanded.

C. O Erwin, and Sankey & Campbell, for plaintiff in error.

Campbell & Dyer, for defendant in error The North and South Lumber Company.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

This action was originally commenced September 20, 1888, by the Farmers Loan and Trust Company of Kansas, in the district court of Sedgwick county, to foreclose a certain mortgage upon real estate belonging to W. W. Dill and Mattie J. Dill, which mortgage was executed and delivered May 2, 1887, and recorded May 28, 1887. The North and South Lumber Company, Elizabeth Buxton and J. R. Stone were made parties defendant. On October 9, 1888, the North and South Lumber Company filed its answer and cross-petition, in which it alleged that on or about the 10th day of February, 1887, the defendants Dill entered into a contract with the North and South Lumber Company to furnish certain material for the erection and improvement of the premises described therein, and which premises were the same as those upon which foreclosure was sought. It further set forth the amount due and unpaid upon the contract for material, and alleged the filing of the lien statement in the office of the district clerk of Sedgwick county and asked judgment for the balance due on the account, and that said judgment be declared a first lien upon the real estate therein described. The plaintiff below afterward filed a reply to the answer and cross-petition of the North and South Lumber Company, alleging the pendency of another action between the North and South Lumber Company as plaintiff, W. W. and Mattie J. Dill, Elizabeth Buxton and J. R. Stone as defendants, in the court of common pleas of Sedgwick county, involving the same matters that were set up in the answer and cross-petition of the North and South Lumber Company. On February 19, 1890, the North and South Lumber Company filed, by leave of court, an amended answer and cross- petition, alleging that on the 26th of April, 1888, and within one year after the completion of the building referred to in its original answer and cross- petition, it commenced an action in the district court of Sedgwick county against W. W. and Mattie J. Dill, as the owners of said real estate, and others as judgment creditors of the defendants Dill, for the foreclosure of its mechanic's lien upon said premises, and that the action was afterward transferred to the court of common pleas of Sedgwick county, where it was still pending and undetermined, and asking a consolidation of the two actions, in order that a complete determination of the issues involved might be had.

On April 19, 1890, Frank Wood; trustee, by leave of court, was made a party to this action and filed his answer and cross-petition therein, in which he admitted that the defendants Dill were the owners of the property in question, that they executed the note and mortgage sued upon by the plaintiff below, and had made default in payments due upon the same; that the North and South Lumber Company, Elizabeth Buxton and J. R. Stone claimed an interest in the mortgaged premises, but alleged that the interest of each of said parties was inferior to the lien of the mortgage set forth in the plaintiff's petition. He further alleged that as such trustee he was the owner of the notes and mortgage described in the plaintiff's petition, having purchased the same on the 6th of June, 1887, and admitted that the assignment then made to him of the mortgage was not placed of record until the 18th of November, 1889. He further alleged that, by reason of the default of defendants Dill, he was entitled to foreclose, and prayed for judgment for the amount due, and that said judgment be declared a lien upon the premises therein described superior to that of each and all the defendants. On November 11, 1890, the North and South Lumber Company filed a supplemental answer setting forth the fact of the rendition of judgment in the action which had been pending in the court of common pleas of Sedgwick county, wherein said North and South Lumber Company was plaintiff and W. W. and Mattie J. Dill were defendants, attached a copy of said decree as a part of said supplemental answer, and asked a priority of lien upon the real estate in controversy as against all the other parties to this action. This cause was tried to the court, a jury being waived, and resulted in a judgment declaring the claim of the North and South Lumber Company to be a lien prior and superior to that of the mortgage of Frank Wood, trustee, and from such judgment the said Frank Wood, trustee, brings the case here for review.

There was but one real issue in the court below, and practically but one question is presented to this court for its decision, and that is the question of priority of lien as between Frank Wood, trustee, and the North and South Lumber Company. The record shows that the contract for furnishing material for erecting the building upon the premises of the defendants Dill was made prior to the giving of the mortgage of Frank Wood, trustee, and that in the action to foreclose the mechanic's lien of the North and South Lumber Company neither the Farmers Loan and Trust Company of Kansas, which was the original owner of said mortgage, nor Frank Wood, trustee, was made a party.

It is contended upon the part of the plaintiff in error that, as more than one year had elapsed between the time of furnishing the material by the North and South Lumber Company to Dill and the time when this action was commenced and when Frank Wood, trustee, was made a party thereto, the North and South Lumber Company cannot enforce said lien against the mortgage in question, for the reason that neither the original payee nor the present holder of said mortgage was made a party to the action brought by the North and South Lumber Company to foreclose its lien, nor were they in any manner brought into court to have their rights to the premises in question adjudicated until more than one year from the completion of the contract between the North and South Lumber Company and Dill; and that, therefore, the court erred in decreeing the lien of the North and South Lumber Company to be superior to that of plaintiff in error.

We are of the opinion that the position of the plaintiff in error is correct. The statute in force with regard to mechanics' liens at the time of the contract in question was as follows:

"SEC. 633. Such lien may be enforced by civil action in the district court of the county in which the land is situated, which action shall be brought within one year from the time any new building, erection or improvement is completed. . . .

"SEC. 634. In such action all persons whose liens are filed as herein provided, and other incumbrancers, shall be made parties, and issues shall be made and trials had as in other cases. . . ."

"SEC. 636. In all cases where judgments have been or may hereafter be rendered in favor of any person or persons, to enforce a lien under the provisions of this act, the real estate or other property shall be ordered to be...