Brothers v. Durbon

45 Iowa 192

• Court: Supreme Court of Iowa
• Decided: December 13, 1876
• Status: Published

Opinion

Adams, J. —

i. t.tw change of. I. One of the questions discussed by counsel is as to whether Durbon was the owner of the premises prior to toe time of the conveyance to him, August 16, 1874. It is claimed by the plaintiffs, the mortgagees, that he was not, and that whatever labor and materials • were furnished for Durbon by the mechanics for the erection of a building on the premises prior to that time were not furnished by virtue of a contract with the owner of the premises, and that they did not, therefore, acquire any lien prior to that time.

In our opinion, however, the plaintiffs might concede that Durbon became the equitable owner of the premises before any materials were furnished or wort done. Until the execution of the deed and mortgage the plaintiffs held the legal title for their security, and afterwards they held the mortgage. In changing one form of security for another for the same debt no other lien could intervene and become paramount thereto. Parsons v. Hoyt, 24 Iowa, 154; Packard v. Kingman, 11 Iowa, 219.

2.-■: mortchfnic’iifen. II. The building erected by the mechanics adjoins another building previously erected on the premises. Whether it is built into and so incorporated with the other as that it cannot be removed under the decision of Getchell v. Allen, 34 Iowa, 559, is a question which we should regard as by no means free from difficulty if the case were triable here de novo; but it is not so triable. It does not appear that the evidence was reduced to writing, and the case is presented on assignment of errors. The evidence is conflicting, and the decision of the court below that the building cannot be removed must be regarded as correct.

Affirmed.