Green v. Tenold ( 1905 )

Morgan, J.

This is an action to' foreclose a mechanic’s lien upon a building. The plaintiff’s assignor furnished the lumber for such building in August, 1896. At that time the land on which the building was placed was occupied by the defendant under a homestead entry made pursuant to the laws of the United States. The defendant relies upon that fact to defeat the plaintiff’s lien. After the plaintiff had rested his case he moved to amend the prayer of his complaint to the effect that he be declared entitled to a judgment against the defendant for the sum of $74.02, and that such judgment be declared a lien upon the buildings described in the complaint; that a special execution issue against said building, and that the same be sold under such execution; that the purchaser of such building at said sale be authorized to remove the same from the land on which it was placed within forty days after the sale thereof. This amendment was allowed, and at the close of the trial the court made findings of fact and conclusions of law in plaintiff’s favor, and judgment was entered ordering the sale and removal of such building in accordance with the relief asked in the amended complaint. The defendant appeals from the judgment, and asks for a review of the entire case under section 5630, Rev. Codes 1889. Among other contentions, it is insisted by the appellant that the plaintiff is not entitled to a lien either upon the land or upon the building erected thereon. The basis of this contention is that the title to the land on which the building was erected was in the United States, and that such land is exempt from sale under execution for any debts created while the title remained in the United States, and that under the law of this state no> lien on buildings separate from the real estate on which the building is situated is given for materials furnished for the erection of such buildings in cases where the interest of the occupant of the land who procured the materials cannot be sold under execution to satisfy the lien.

It is well settled in this state and in others that lands held under the United States homestead laws, prior to the issuance of patent, are exempt from mechanics’ liens based on contracts made while the title to such lands remained in the United States. Mahon v. Surerus, 9 N. D. 57, 81 N. W. 64; Gull River Lumber Co. v. Briggs, 9 N. D. 485, 84 N. W. 349; Kansas Lumber Co. v. Jones, 32 Kan. 195, 4 Pac. 74; Paige v. Peters, 70 Wis. 178, 35 N. W. 328, 5 Am. St. Rep. 156; Fink v. O’Neill, 106 U. S. 283, 1 Sup. Ct. 325, 27 L. Ed. 196. In Mahon v. Surerus, supra, this court held that, under the mechanic’s lien law as it then existed under the Compiled Laws, a lien was given on the building separate from a lien on the land, and that where the occupant had no title to the land the lien could be enforced against the building, and the building removed from the land after sale under foreclosure of the lien. Section 5480, Comp. Laws 1887, authorized such sale and removal. Said section 5480 was repealed under the revision of the Code in 1895. In Gull River Lumber Co. v. Briggs, supra, this court held that the effect of the repeal of section 5480, Comp. Laws 1887, is to destroy the right to a lien upon a building when the lienee has no interest in the land, or the land is exempt from sale under liens, as in this case. The court said: “In all other cases the building must remain upon the land; but a lien upon a building that could in no manner be utilized would be so barren of benefits that we cannot presume the legislature ever intended to confer it.” That case holds, in construing this same statute, that no lien attaches to the land or to the building unless the owner of the building has some interest or estate in the land out of which a lien can be enforced, and that a building cannot be sold separately from the land to satisfy a lien except in the cases prescribed by sections 4794 and 4795, Rev. Codes 1899; that is, in cases of leasehold interests that have been forfeited, and in cases of incumbrances on the land when the materials are furnished. We think the latter case decisive of the case at bar. This decision is assailed by counsel for respondent. In our opinion, the question of its correctness is not now open for discussion. A rule of property was announced by it, under which many and important interests have arisen. Under these circumstances the decision should not be changed, even were it conceded to be without authority to sustain it, or a doubtful construction of the statute. Smith v. McDonald, 42 Cal. 484. It has the support of authority, however: Kellogg v. Little & Smythe Co., 1 Wash. 407, 25 Pac. 461; Coddington v. Dry Dock Co., 31 N. J. Law, 477; Babbitt v. Condon, 27 N. J. Law, 154; Ranson v. Sheehan, 78 Mo. 668. No judgment for the value of the materials furnished can be ordered, as more than six years has elapsed since the materials were furnished.

The judgment is reversed, and the district court is directed to dismiss the action.

Young, J., concurs.