Fuller v. Pauley

66 N.W. 1115, 48 Neb. 138, 1896 Neb. LEXIS 26

• Court: Nebraska Supreme Court
• Decided: April 21, 1896
• Docket: No. 6521
• Status: Published

Opinion

Harrison, J.

It appears from the pleadings and evidence in this case that W. T. Searles had contracted to purchase from the state a section of what is generally known as “school land,” or a “school section,” and had such written evidences or contracts as are issued in transactions of this character between the state and a purchaser of school lands. On October 1,1887, he sold the land to one J. M. Pauley, the price agreed upon being $12.50 per acre, or $8,000 for the entire tract. Pauley was to pay the amount then unpaid to the state, $4,320, and to pay in cash to Searles $3,680. Of this last mentioned sum he paid but $80. In December of the same year, or the following January, pursuant to an agreement then entered into by the parties, Pauley gave his notes, payable six months after date, to Searles for the unpaid balance of the amount of what was to have been the cash payment of the purchase consideration. After this arrangement Pauley took possession of the land and remained in possession until about November 1, 1888, and during the time just indicated erected a house and barn and made some other improvements thereon, and for the lumber and other materials used in so doing became indebted to the appellants, and also to S. K. Painter for some material. These bills not being paid, a lien was prepared and filed by each party, in accordance with the provisions of our statute in relation to mechanics’ liens, and in this, an • 7 7 action by appellants to enforce their lien, and in which S. K. Painter, the other lien-holder, and W. T. Searles were made defendants, a decree was rendered foreclosing the lien of appellants, also that of Painter, but subordinating them to the rights or demand of Searles, Pauley’s vendor, for the unpaid balance of the purchase price of' the land.

The question of the priority as between the liens for material and the vendor’s claim for unpaid purchase money is the main one presented by the appeal. Collateral to this, but quite important in a final determination of the case, is the inquiry of whether Pauley, as a part consideration for the sale of the land to him by Searles, agreed to build the dwelling and barn, the furnishing of materials for which by the lien-holders, respectively, is the basis of the lien of appellants and of S. K. Painter. The evidence on this point in the case is conflicting, and the judge before whom it was tried made a general finding on the issues involved in favor of Searles, which comprised and included a finding that it was no part of the consideration for the purchase of the land that Pauley should build the house and barn, and this conclusion was amply supported by the evidence and will not be disturbed. The evidence discloses that Searles did not assign to Pauley the contracts of purchase issued by the state, but retained them in his possession, and intended to do so until the whole sum which he would realize from the transaction should be paid to him. With these conditions shown to exist, — a contract of sale from vendor to vendee, a portion of the purchase money unpaid, no part of the consideration between the vendor and vendee being an agreement by the vendee to erect the improvements, there being in fact no such an agreement, while the right to a lien for materials furnished to make the improvements might arise and attach, — it could, in any event, be only to the interest of the vendee in the property and as a lien subject and inferior to the right of the vendor for any unpaid balance of purchase money. (Mentzer v. Peters, 33 Pac. Rep. [Wash.], 1078; Thomas v. Ellison, 22 S. W. Rep. [Ark.], 95; Wilkins v. Litchfield, 29 N. W. Rep. [Ia.], 447; Smith v. Huckaby, 23 S. W. Rep. [Tex.], 397; Phillips, Mechanics’ Liens, sec. 72.) The judgment of the district court is

Affirmed.