Alaska Plumbing Co. v. Bingham

115 P. 159, 58 Or. 506, 1911 Ore. LEXIS 79

• Court: Oregon Supreme Court
• Decided: April 27, 1911
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. We are satisfied from the evidence that neither appellant nor any one authorized to act for her had any knowledge that the water system constructed by plaintiff was being placed in the building until long after it had been installed, and the authorities are clear that a vendee of real property under a contract of sale of the character of the one at bar cannot incumber it without the consent of the actual owner. Belnap v. Condon, 34 Utah, 213 (97 Pac. 111: 23 L. R. A. [N. S.] 601); Rossi v. MacKellar (Com. Pl.), 13 N. Y. Supp. 827.

2. The next question for consideration is whether at the commencement of this suit there remained in Cone or in Mrs. Bingham, by Cone’s assignment, any equitable interest of Cone that could be the subject of a decree of foreclosure. There is no question but that the legal title to the property remained in Mrs. Bingham, and the only right that Cone ever had in the property was a right to demand^ a conveyance upon making the payments required in the contract, and the right to remain in possession so long as he continued to make the payments. He had no interest in a single foot of the soil or a single board in the building, but a right to demand a conveyance of these upon compliance with his contract. Had he sold what right he had, the purchaser could only have stepped into his shoes, and by complying with his contract enabled himself to finally demand a deed. The assignment to Mrs. Bingham under the circumstances merely amounted to a surrender of his possession, without the formality of an eviction. He had forfeited his right and was about to be turned out, and really had nothing to assign, and his attempted assignment conveyed nothing, because he had nothing. A decree ordering his interest to be sold would simply authorize plaintiff to sell his imaginary right in a forfeited contract— a right to demand the fulfillment of a broken and therefore void agreement.

Adams v. Russell, 85 Ill. 284, cited by counsel, is not in point. In that case King, Dayton & Adams sold a lot to one Watson, who purchased from Russell lumber, giving his note therefor, with which he built a house on the land. Subsequently he defaulted in his payments on the lot and reconveyed to his grantors; they agreeing to discharge the note. The court held that this agreement rendered the land liable on the foreclosure of a lien for the lumber, which the note was given to secure. It will be noted in the first place that, in the case above alluded to, the grantors made an absolute deed to the premises, reserving only a vendor’s lien, and that, upon the reconveyance, they expressly agreed to pay the debt which was embraced in the lien.

In Kerrick v. Ruggles, 78 Wis. 274 (47 N. W. 437), Ruggles purchased from the Neil-Pratt Lumber Company certain land, under a contract, the terms of which are not disclosed, and went into possession of the premises and built a mill thereon. Ruggles, with the knowledge and consent of the Neil-Pratt Lumber Company, • bought of Kerrick, and installed in the mill, certain heavy machinery, which was affixed to the realty. It was held that under these circumstances a subsequent cancellation of the contract of purchase did not extinguish Kerrick’s lien for the price of the machinery. The terms or circumstances under which the cancellation was made are not given, and whether there had been any previous default in payments does not appear.

In Wingert v. Stone, 142 Pa. 258, 262 (21 Atl. 812), Stone purchased a town lot and built a house thereon. He failed to pay for the materials used in the erection of the building, and thereafter refused to make further payments on the lot. His wife conveniently stepped in and contracted with the original vendor to complete the purchase, and then claimed that she held the house free from the lien. The court held that the husband had an equitable estate in the property which was not divested by refusing to pay the installments, but which should have been reconveyed. The court observed that this was a new way to get a house without paying for it, but does not seem to have gone very deeply into the case, either by way of statement of facts or discussion of the law.

In Boyd v. Blake, 42 Minn. 1 (43 N. W. 485), the vendor of land accepted a surrender of the contract of sale, agreeing, as a consideration for such surrender, to pay a lien claim which the vendee had incurred. The court held that this agreement subjected the surrendered land to the lien. In the case at bar there is no such agreement. The case of King v. Smith, 42 Minn. 286 (44 N. W. 65), seems to turn upon the construction of what the court calls an “awkwardly worded” statute of Minnesota, and, while there are some expressions used therein that appear to support plaintiff’s contention here, they are not convincing.

It is always in the power of one furnishing materials for the erection of a building to ascertain the interest therein of the person with whom he is contracting, and if he neglects this necessary precaution the courts ought to allow him to suffer the consequences of his negligence, rather than to saddle the loss upon innocent parties by a forced construction of the law.

The decree will be reversed, and one entered here dismissing the suit. Reversed : Decree Rendered.