Lorenz Co. v. Gray

Petition for rehearing denied June 23, 1931. ON PETITION FOR REHEARING (300 P. 949) On plaintiff's motion for rehearing and motion of defendant B.A. Kliks to strike brief in support of petition for rehearing, and motion for modification of original opinion.

MOTION FOR REHEARING AND TO MODIFY ORIGINAL OPINION OVERRULED, AND MOTION TO STRIKE BRIEF SUSTAINED. Defendant B.A. Kliks moves to strike the brief in support of the petition of plaintiff for rehearing on the ground that the same is not printed. Rule 25 of this court provides that counsel may accompany a petition for rehearing with a printed brief of the authorities upon which they rely in support thereof, but no oral or typewritten argument will be heard or considered thereon. Pursuant to this rule the motion to strike must be sustained. This leaves plaintiff's motion for rehearing unsupported by brief or argument to be determined.

In an attempt to give consideration to the law applicable to this case, with other authorities consulted the writer has carefully read and considered the following: Harrisburg LumberCo. v. Washburn, 29 Or. 150 (44 P. 390); 2 Devlin on Deeds (3d Ed.), p. 2026, § 1043; 18 C.J., p. 278, § 243 and notes; Kannev. Otty, 25 Or. 531 (36 P. 537); Brace and Hergert Mill Co. v.Burbank et ux., 87 Wash. 356 (151 P. 803, Ann. Cas. 1917E, 739).

The case of Harrisburg Lumber Co. v. Washburn, supra, is clearly distinguishable from the case at bar. In that case a single building was described as a church and it was shown to be the only church of the denomination mentioned in the claim of lien which had been constructed in Harrisburg wherein the real property attempted to be described was situated.

Sec. 243, vol. 18, C.J., p. 278, declares the familiar rule that a grantor will be deemed to have intended to convey land owned by him when the description in his conveyance is equally applicable to two tracts of land only one of which the grantor owns. Similarly Sec. 1043 of vol. 2, Devlin on Deeds, supra, declares that such an ambiguity may be explained by showing which one of the several tracts was claimed by the grantor. Kanne v.Otty, supra, is a suit to establish a boundary line. These authorities shed no light upon the requisites of a description of the building or other structure upon which a mechanic's lien is sought to be impressed.

Brace and Hergert Mill Co. v. Burbank, supra, construes the notice of initial delivery mailed to the owner of the building upon which a mechanic's lien was thereafter filed. It is distinguishable from the case at bar in that in the case at bar we are construing the claim of lien upon which constructive notice to third parties depends.

We adhere to our former holding in respect to plaintiff's claim of lien, and plaintiff's motion for rehearing is therefore overruled.

In a motion for a modification of our original opinion defendant B.A. Kliks urges that this court erred in allowing the lien of respondent J.M. Gray. We made no such order of allowance. We held that inasmuch as no demurrer had been interposed to the answer and cross-complaint of defendant, there was a waiver of the question of the effect of the failure of said defendant to allege compliance with section 59-1905, Oregon Code 1930.

We held that, for reasons stated, the circuit court erred in overruling the demurrer to plaintiff's complaint. An application to file an amended complaint if one is made should be addressed to the discretion of the trial court. If an order allowing plaintiff to file an amended complaint is made, it would follow that the issues if any tendered by defendants would again have to be joined. It is for the trial court in first instance to determine the manner in which this may be done. While we have made no order of allowance of the claim of defendant Gray, neither have we made one of disallowance thereof. The question which may be presented upon retrial with respect to this claim, as well as all others not disallowed in our original opinion, may depend upon pleadings yet to be filed as well as testimony yet to be heard. We would not be justified in attempting to anticipate these questions.

Defendant B.A. Kliks also argues that we erred in failing to concur with his contention that his mortgage is a purchase money mortgage. Pacific Spruce Corporation v. Oregon Cement Co.,133 Or. 223 (286 P. 520, 289 P. 489), is cited as holding to the contrary. In that case the Newport Hotel Co. executed its mortgage upon certain real property to M.S. Woodcock and at the same time Woodcock executed a deed thereof to the mortgagor. The facts differ from those involved in the case at bar. In the case at bar the mortgage was given to a third party, and not to the vendor. In the Pacific Spruce Corporation case it does not appear that there was any contract of purchase prior to the execution of the deed and mortgage. We think that the facts in the case at bar more nearly resemble those in Paget v. Peters, 133 Or. 608 (286 P. 983, 289 P. 1119), than those in the Pacific Spruce Corporation case, supra.

The case of Lapoint v. Sage, 90 Vt. 560 (99 A. 233), is one wherein one La Point entered into a contract with one Stetson to purchase certain real property. Twelve years thereafter La Point executed a mortgage to Stetson to secure the unpaid balance then due upon said contract. La Point did not procure the money from a third party, as Day and Co. did in the case at bar.

The writer is of the opinion, as Mr. Chief Justice BEAN has so well said: "That if the law should be so construed that anyone obtaining a loan and giving a real estate mortgage to a third party not the vendor of the land to secure the payment thereof, when it was contemplated that the money so borrowed should be used in payment for the real property purchased at the time, would be executing a mortgage ``to secure payment of the balance of the purchase price of real property' within the purview of the statute, and that the lender could only look to the property upon a foreclosure proceeding then the person wishing to purchase a home or other real property would be hampered and his credit impaired, and it might well be said that: The last state of that man is worse than the first": Ladd and Tilton Bank v. Mitchell, 93 Or. 668, 675,676 (184 P. 282, 6 A.L.R. 1420).

As to the matter of attorney's fee to be allowed defendant B.A. Kliks we are impressed with the effect of the stipulation made by the parties in respect thereto at pages 673 and 674 et seq. of the transcript of testimony and hold that the same should be made effective in the final decree unless rescinded by the parties, in which event defendant Kliks should be given an opportunity to introduce testimony thereupon.

Mr. Kliks makes a strong plea for a final decree herein at this time. We cannot enter such a decree for the reason that as to several causes of suit we hold that the demurrer to the complaint should be sustained, because of omissions which it may be possible to supply by amendment. As to these causes of suit plaintiff relied upon the ruling in its favor of the circuit court. In that regard, if it desires to do so, plaintiff should be given an opportunity to file an amended complaint.

The motion of defendant B.A. Kliks for rehearing and to modify the original opinion herein is overruled.

BEAN, C.J., RAND and ROSSMAN, JJ., concur.