Weaver v. Sells , 10 Kan. 609 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

This case involves the construction of § 630 of the civil code as amended by ch. 87, Laws of 1870, page 177, § 21. Said amended section reads as follows:

“Sec. 630. Any mechanic or other person who shall, under contract with the owner o£ any tract or piece of land, his agent, trustee, contractor or sub-contractor, or under contract with the husband or wife of such owner,* perform labor or furnish materials for erecting, altering or repairing any building or the appurtenances of any building, or any erec-

tionor improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attached to any such building or improvement, or shall plant, or plant and grow successfully, a hedge fence, or shall build a stone fence on any such tract or piece of land, shall have a lien upon the whole tract or piece of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such labor or materials, fixtures or machinery; such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings or improvements, or any or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, or the making of such repairs or improvements.”

i. Lien law SgMofveufor lumber. ' This section so far as it has any application to this case, may be read as follows: “Any person who shall under contract with the owner of any tract or piece of land * * * furnish materials for erecting * * * any building * * * shall have a lien upon the whole tract or piece of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such * * * materials.” The question now presented under this statute is as follows: Where a vendor sells lumber on credit, without any reference to what shall be done with it, and the vendee afterwards uses the lumber in constructing a building on land belonging to himself, has the vendor a lien on said land and building of the vendee for the purchase-money which lien will be prior to the lien of a subsequent mortgagee? We think not. In fact, we do not think that he has any lien at all. In order for the vendor to obtain a lien in such a case he should sell and furnish the lumber for the building. He should sell and furnish it with the intention or understanding that it should be used in constructing the building. If he should furnish it with the understanding that it should be sold again as merchandise — if he should furnish it upon the personal credit of the vendee alone, without intending or expecting t<3 obtain any security by virtue of a mechanic’s lien, we suppose it would hardly be claimed that a mechanic’s lien would be created even though the vendee might afterward use the lumber in erecting a building. The right to the lien must be created at the time or before the material is furnished. It cannot be created afterward. It is the furnishing of the material under a contract, with the intention and understanding that it shall be used in erecting the building, that creates the lien. (See the authorities cited in the brief of counsel for plaintiffs in error.) When such lien is created, then “such lien shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings, or improvements, or any or either of them subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, or the making of such repairs or improvements.” (Laws of 1870, page 177.)

„,. , ., created,'?s a vested ngiit. Whenever a mechanic’s lien is created fot material furnished, the right to the lien becomes a vested right at the time the material is so furnished, and it is not within the power of the legislature to afterwards ¿es^r0y right, by repealing the statute under which the right has accrued or otherwise. It is true, the legislature may shorten the time for filing the statement of the lien; (see amended § 633 of the code, laws of 1870, page 170, §24; laws of 1871, page'254, §3;) but in such a case the legislature would be bound to give a- reasonable time in which to file the statement or their act would be void.

In the case at bar there is nothing that shows that the lumber sold by the plaintiff Sells was sold with any intention or understanding that it was to be used in the building of defendants U'oak & Thomas, or in any other building. There is not even an allegation in the petition of the plaintiff Sells that the lumber was sold or furnished with any such intention or understanding. Therefore we think the court below erred in its conclusion of law and judgment, that “Elijah Sells by virtue of his said mechanic’s lien 'has and holds the first and prior lien upon said premises, in the petition of said Sells described, to the amount of his said claim, and that Sells should be first paid out of the proceeds of the property.” The Avriter of this opinion is unable to understand with any degree of certainty what was intended by or understood from the peculiar exception taken by the plaintiffs in error to the rulings of the court below concerning said lien; and counsel differ as to what its meaning was intended or understood to be. But the majority of this court is of the opinion that said exception is sufficiently definite and certain, and that it sufficiently raised the question of the validity of said supposed lien in the court below, so far as it affected the plaintiffs in error. The judgment of this court must therefore be as follows: The judgment of the court below, so far as it adjudges that the said Elijah Sells has a lien on said premises prior to the lien of Adam Weaver, and prior to the lien of the Leavenworth, Lawrence and Galveston railroad company, must be reversed; but the judgment of the court below is not in any other respect disturbed; and the cause is remanded with the order that the court below render judgment on its findings in accordance with this opinion.

All the Justices concurring, except as above stated.