McCausland v. West Duluth Land Co. , 51 Minn. 246 ( 1892 )

Gilfillan, C. J.

The West Duluth Land Company was the owner of the land, and September 3, 1890, made a contract in writing to convey it to Eiggin, and pursuant thereto it conveyed to him May 3, 1891, and at the same time he executed to it a mortgage for a part of the purchase price. Between the two dates the various liens accrued. The question is, which takes priority, the mortgage or the liens ?

The contract to convey was not contingent on, and did not provide for, the erection of the building, so that the case did not at any time come within Laws 1889, ch. 200, § 4. And the court below finds that the building was erected with the knowledge of the owner, (the land company,) so that at the time of the conveyance the case was within section 5 of that chapter, as it was construed by this court in Wheaton v. Berg, 50 Minn. 525, (52 N. W. Rep. 926,) and, unless the owner had protected its property from them in the manner provided in that section, the liens had attached, not only to the interest of Eiggin, but to that of the owner also. Now, while it is true that, where the vendor’s interest is not subject to the lien, a mortgage for the purchase money upon a conveyance by him, the mortgage being only a continuation of his interest in another form, will not, although in date subsequent to the lien, become subject to it, it is not true that it takes priority merely because it is for the purchase money. Its status in respect to the mechanic’s lien will be the same as that of the interest for the purchase price of which it is given.. If that be subject to the lien, it will also be subject to it; if that be not subject to the lien, it will not be.

It does not appear that the owner gave or posted the notice specified in section 5. And this raises the question, upon whom is the onus of proof in respect to the notice? Must the claimant, to establish his lien, prove that it was not given or posted ? or must the owner, in order to protect his property from the lien with which the section charges it, unless he shall serve or post the notice, prove that he did so ? Some expressions in the opinion in Wheaton v. Berg, supra, are referred to as holding that the onus is on the claimant. But that question was not before the court, and there was no intention to indicate any opinion on it. In analogy to the general rule that the party to be benefited by the affirmative of an issue must assume the initiative of proof, we think the onus upon the giving or posting of notice is on the owner, and, in the absence of any evidence on the point, it must be taken that the notice was not served or posted.

Judgment affirmed.

Mitchell, J., took no part in the decision.

(Opinion published 53 N. W. Rep. 464.)