Woods v. Deckelbaum, 19210
| Decision Date | 14 December 1961 |
| Docket Number | No. 19210,19210 |
| Citation | 178 N.E.2d 544 |
| Parties | Dave W. WOODS, Appellant, v. W. S. DECKELBAUM, Fortune Corporation, Enterprise Corporation, Fox Run Properties, Inc., the Indiana National Bank of Indianapolis, and Deckelbaum- Smith Realty Corporation, Appellees. |
| Court | Indiana Appellate Court |
Opinion Superseded 191 N.E.2d 101.
Henry J. Richardson, Jr., Nola A. Allen, Indianapolis, James A. Emmert, Shelbyville, for appellant
Charles B. Feibleman, Gene E. Wilkins, Indianapolis, for appellees, W. S. Deckelbaum and Deckelbaum-Smith Realty Corp.
Paul J. DeVault, Donald A. Schabel, Indianapolis, Buschmann, Krieg, DeVault & Alexander, Indianapolis, of counsel, for appellees, Fortune Corp., Enterprise Corp., and Fox Run Properties, Inc.
Appellant filed action against appellees for the foreclosure of a mechanic's lien for materials furnished and labor performed in connection with certain repairs to a building, which repairs were made at the behest of and for the benefit of a tenant, Darlington Realty Co., Inc., which had leased the premises from Deckelbaum-Smith Realty Corporation, one of the appellees herein. The original action was brought against William A. McQuary, Darlington Realty Co., Inc., also known as Darlington Business Brokers, Fortune Corporation, Enterprise Corporation, Fox Run Properties, Inc., The Indiana National Bank of Indianapolis, Deckelbaum-Smith Realty Corporation, and W. S. Decklbaum. Mr. McQuary was president of Darlington Realty Co., Inc.
The ultimate issue presented to the court below was whether appellant was entitled to a foreclosure of his mechanic's lien for materials furnished and labor performed against the interests of the appellees, part of whom were the legal and part the equitable owners of the real estate in question, when said materials and labor had been furnished at the behest of and for the benefit of the tenant-defendants.
Trial was had by the court which found that appellant was entitled to a personal judgment of $1,243.95, being the amount of the claim sued upon, plus attorney fees in the sum of $400, against only the defendants, William A. McQuary and Darlington Realty Co., Inc., also known as Darlington Business Brokers, and further that the mechanic's lien should not be foreclosed against the interest in the real estate of the remaining defendants.
The only unwaived assignment of error to be considered by this court is whether or not the decision of the court is contrary to law. This being a negative judgment against the appellant, who had the burden of proof in the trial court, and in favor of the named appellees herein, although appellant strongly urged in his brief and in oral argument that this court consider that the decision is not sustained by the evidence, it is elementary that we cannot consider the question of the sufficiency of the evidence. Wilson, Admx. v. Rollings (1938), 214 Ind. 155, 14 N.E.2d 905; Rowe v. Johnson (1945), 223 Ind. 289, 60 N.E.2d 529; Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669.
In considering whether or not the decision of the court is contrary to law, we are presented with the question as to whether under the evidence appellant was entitled to relief which was denied him by the court, that is, that the court applied wrong principles of law to the facts established by the evidence, or that the evidence is without conflict and leads inescapably to but one reasonable conclusion, contrary to that of the one reached below. Mackey v. Andrews (1961), Ind.App., 171 N.E.2d 707; Wilson, Admx. v. Rollings, supra; Pokraka v. Lummus Co., supra.
Reviewing the evidence most favorable to appellees, we find that the record substantially shows the following factual situation:
Appellees, Fortune Corporation, Enterprise Corporation and Fox Run Properties, Inc., are one and the same legal entity, since Fortune Corporation and Enterprise Corporation were predecessor corporations which were merged into Fox Run Properties, Inc. On or about March 1, 1956, Enterprise Corporation, as it was then known, entered into a conditional sales contract with appellee, Deckelbaum-Smith Realty Corporation, wherein the real estate involved in this cause, part of which was known as 239 East Ohio Street, in the City of Indianapolis, Indiana, was sold to Deckelbaum-Smith Realty Corporation. Actual possession of the premises was delivered to that corporation. This conditional sales contract was not recorded, and at the time appellant had contracted to make the repairs he had no knowledge of the existence of this sales contract, or did he know that appellee, Fox Run Properties, Inc., was then the owner of the legal title to the real estate.
About April 30, 1957, Deckelbaum-Smith Realty Corporation entered into a written lease-agreement wherein a storeroom formerly used as a gymnasium and located on those premises, was leased to Darlington Realty Co., Inc. The president of this corporation was one William McQuary. He entered into a verbal agreement with appellant to make certain repairs to the inside and outside of the storeroom. Appellant commenced work immodiately thereafter and finished his job about June 7, 1957. Although McQuary had promised to pay him for the work appellant had done, he did not do so. Eventually, McQuary failed to pay rent, his company's lease was terminated, and the premises were vacated. On July 3, 1957, appellant filed a notice of mechanic's lien, and on August 6, 1957, he filed a second notice wherein all appellees were named. Thereafter this suit was filed in the Marion Circuit Court to foreclose the lien against each and all of the appellees and judgment was rendered as heretofore set forth.
One of the issues decided in the trial court was that the appellees, Fortune Corporation, Enterprise Corporation and Fox Run Properties, Inc., as the legal owners of the title to the real estate in question, could not be bound by the mechanic's lien filed by appellant. We think the trial court was correct in making this decision. The record is completely devoid of any evidence that any of these appellees, through their proper agents, was aware that any work was being done on the premises. Their title was subject to a contract of purchase wherein the purchaser was in possession of the premises. The applicable law has been stated in Courtney v. Luce (1936), 101 Ind.App. 622, 626, 200 N.E. 501, 503, where the court said as follows:
See, also, People's Savings, Loan and Building Association v. Spears et al. (1888), 115 Ind. 297, 17 N.E. 570; Toner v. Whybrew (1912), 50 Ind.Spp. 387, 98 N.E. 450; Robert Hixon Lbr. Co. v. Rowe (1925), 83 Ind.App. 508, 149 N.E. 92.
Thus, the record does not even show inactive consent on the part of the owner, and it is clear that something more than inactive consent is necessary in order that a mechanic's lien may attach against the owner's interest in a situation of this type. See Harris v. Mt. Vernon Lumber Co. (1961), Ind.App., 173 N.E.2d 672.
However, the trial court also found that the equitable interest of Deckelbaum-Smith Realty Corporation was not subject to the mechanic's lien filed by appellant. With this we cannot agree. The conditional sales contract between Enterprise Corporation and Deckelbaum-Smith Realty Corporation provided that the building wherein the storeroom was located was to be sold to Deckelbaum-Smith Realty Corporation for the total sum of $80,750. At the time of the execution and delivery of the contract, $20,750 was paid in cash, and monthly sums were to be paid thereafter until the principal sum, together with interest, was paid in full. Possession of the real estate was given to the purchaser, but title and ownership were to remain in the seller, and no right, title or interest in the real estate was to pass by virtue of the agreement until the purchase price was paid in full and all conditions complied with.
It is well known that the interest of a purchaser of real estate under a contract of sale is subject to a mechanic's lien. Kendall Lumber & Coal Co. v. Roman (1950), 120 Ind.App. 368, 91 N.E.2d 187. It is our conclusion that if a lien is to attach to the equitable interest of the purchasers of real estate, the material should have been furnished or the labor performed under the direction and by the authority of the purchaser as equitable owner, or that there must be something more than mere inactive consent on the part of such purchaser. In other words, the same rules apply to a purchaser of real estate under a contract of sale, who leases property to a tenant who contracts for labor and materials to be furnished the real estate which is the subject of the sale, as to a vendor-vendee relationship subject to a contract of sale wherein the vendee allows a mechanic's lien to be filed against the real estate for improvements made thereon by him. If there was no express authorization or direction by the purchaser herein for improvements furnished the premises by the tenant, such purchaser's equitable interest could not be subjected to a lien unless there was something more than inactive consent on the part of the purchaser.
If we assume that the statements made by Mr. Deckelbaum himself at the trial speak the truth, we find the following facts may be determined from his testimony:
He was a realtor, doing business in the City of Indianapolis. He was the president...
To continue reading
Request your trial
-
Woods v. Deckelbaum
...Appellate Court pursuant to Burns' § 4-215 (1946 Repl.), 1 the Appellate Court's majority and dissenting opinions appearing in Ind.App., 178 N.E.2d 544. Appellant brought action in the trial court to foreclose a mechanic's lien against the various appellees who were the tenants and owners o......