Red River Valley National Bank of Fargo v. Craig

This action was brought to enforce certain described in the complaint. The trial resulted in a judgment in favor of the lienors, which on appeal was affirmed by the supreme court of the state, and the Red River Valley National Bank of Fargo, one of the defendants below, has brought the case here by writ of error.

The trial court found the following facts: On July 8, 1884, Elvira Cooper was the owner of the property, being lot 6, block 5, of the original town site of Fargo, Cass county, North Dakota, and on that day she, with her husband, mortgaged it to secure the payment of the sum of $3,000 to the Travelers' Insurance Company of Hartford, Connecticut. Prior to January 1, 1893, the mortgagor sold and conveyed the property, subject to the mortgage, to one Rosa Herzman, who remained the owner until the foreclosure of the mortgage under the statute and the sale of the property to the insurance company, which took place on May 7, 1894, and on that day a sheriff's certificate of sale was issued to it. On January 12, 1895, the insurance company assigned this certificate of sale to the plaintiff in error, and on May 17, 1895, it received from the sheriff a deed of the premises. During the time of the ownership of the property by Rosa Herzman she erected upon the lot a two-story and basement brick building, which was completed by February 3, 1894, and which still remains on the lot in good condition. During the summer and fall of 1893 various work was done and materials furnished upon and for the building for which the owner of the premises failed to pay in full, and thereafter and between November 17, 1893, and February 2, 1894, various persons who had furnished materials or performed work and labor for and in the erection of the house filed their liens, and subsequently, on November 15, 1898, commenced this action to foreclose the same against (among others) the plaintiff in error as the owner of the property.

It was also found by the court that the east and west walls of this new two-story brick building were party walls, the east wall standing equally upon its own and the adjoining lot, while the west wall stood wholly upon its adjoining lot, and the walls were built in pursuance of an agreement to that effect between the owners of the different lots, so that the building in question and those on each side constituted a solid row of three brick buildings belonging to different owners, and the building was incapable of being removed from the lot unless it were first torn down. It was also found that it would be for the best interest of all parties that the land and the improvements thereon should be sold together, and that the land and the improvements were of equal value, each one being at least of the value of $2,500. The judgment, after adjudging the amounts of the liens of the various parties, gave the plaintiff in error the privilege of paying the same within thirty days from the service of a copy of the judgment, and in default, after proper notice, the property was directed to be sold by the sheriff of Cass county, and of the moneys received therefor one half was directed to be paid and delivered to the plaintiff in error, and from the other half the lienors were to be paid, and if there were any excess after such payment it was to be paid over to the bank.

At the time of the execution of the mortgage the mechanics' lien law then in existence was known as chap. 31 of the Code of Civil Procedure, as found in the Revised Codes of 1877. Sections 655, 666, and 667 are set out in the margin.

At the time when the work was done upon, and the materials furnished for, the erection of the house, the mechanics' lien law in force is to be found from §§ 5468-5485, Comp. Laws N. D. 1887. Section 5469 is the same as § 655, of chap. 31, above mentioned, with the exception of an immaterial addition at the end of the section, while § 5480 is identical with § 666 of that chapter. Section 5481 is a substitute for § 667 of the same chapter, and is set forth in the margin.

It is evident that the law was in substance the same on this subject when the mortgage was executed and when the work was done and the materials furnished.

The mechanics' lien law in existence at the time that this action was brought is to be found from §§ 4788-4801, Revised Code of 1895. Section 4788 would seem to be a substitute for § 655 of chapter 31, above mentioned, and § 4795 is a substitute for § 666 of the same chapter. These sections are placed in the margin.

''Messrs. Ira B. Mills, Wm. C. Resser, and Ernest B. Mills'' for plaintiff in error.

Mr. S. B. Pinney submitted the case for the defendants in error, and Messrs. George W. Newton, E. H. Smith, John D. Benton, V. R. Lovell, and C. L. Bradley were with him on the brief.

Mr. Justice Peckham, after making the above statement of facts, delivered the opinion of the court: