Getchell & Sons v. Musgrove

Supreme Court of Iowa

Getchell & Sons v. Musgrove

54 Iowa 744

DecidedOctober 23, 1880

StatusPublished

This text of 54 Iowa 744 (Getchell & Sons v. Musgrove) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Getchell & Sons v. Musgrove, 54 Iowa 744 (iowa 1880).

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Opinion

Rothrock, J.

1. MECHANIC’S lien: taking collateral semenftore-6" store lien. Section 2129 of the Code, which was in force when the materials were furnished and the mortgage taken and canceled, is in these words: “No per- . ... ..... . , - son is entitled to a mechanic’s lien who takes collateral security on the same contract.” It is contended by counsel for appellant that under this statute the parties to the contract for the materials had no power to revive the lien, it having been wholly lost and destroyed by taking the collateral security. In other words, it is claimed that as the plaintiffs were not entitled to a lien [746]*746because they took collateral security, they could not by contract with McConnell acquire that which the law declares they shall' not have. But we think the parties to the contract may waive this provision of the statute, or rather that the owner of the building may by his acts estop himself from asserting any right under it. McConnell agreed with plaintiffs that if they would surrender the mortgage they might assert the mechanic’s lien. lie would be estopped from claiming that there was no lien because collateral security had once been taken for the debt.

It will be understood that this controversy, as it appears from the pleadings, presents no other question than if McConnell alone were defending the enforcement of the lien. It appears that the defendant McConnell, at the time the mortgage was surrendered and the lien filed, was the owner of the building, and held the same interest in the land as he did when the building was erected, and the material furnished, and that no rights of the defendant Musgrove had intervened. The defendant Musgrove was, therefore, in no way prejudiced by the surrender of the mortgage, and the assertion of the mechanic’s lien. She acquired whatever right she may have as against the lien after it was filed and the collateral security canceled. We think the judgment of the Circuit Court must be

Affirmed.

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Rothrock, J.

1. MECHANIC’S lien: taking collateral semenftore-6" store lien. Section 2129 of the Code, which was in force when the materials were furnished and the mortgage taken and canceled, is in these words: “No per- . ... ..... . , - son is entitled to a mechanic’s lien who takes collateral security on the same contract.” It is contended by counsel for appellant that under this statute the parties to the contract for the materials had no power to revive the lien, it having been wholly lost and destroyed by taking the collateral security. In other words, it is claimed that as the plaintiffs were not entitled to a lien [746]*746because they took collateral security, they could not by contract with McConnell acquire that which the law declares they shall' not have. But we think the parties to the contract may waive this provision of the statute, or rather that the owner of the building may by his acts estop himself from asserting any right under it. McConnell agreed with plaintiffs that if they would surrender the mortgage they might assert the mechanic’s lien. lie would be estopped from claiming that there was no lien because collateral security had once been taken for the debt.

It will be understood that this controversy, as it appears from the pleadings, presents no other question than if McConnell alone were defending the enforcement of the lien. It appears that the defendant McConnell, at the time the mortgage was surrendered and the lien filed, was the owner of the building, and held the same interest in the land as he did when the building was erected, and the material furnished, and that no rights of the defendant Musgrove had intervened. The defendant Musgrove was, therefore, in no way prejudiced by the surrender of the mortgage, and the assertion of the mechanic’s lien. She acquired whatever right she may have as against the lien after it was filed and the collateral security canceled. We think the judgment of the Circuit Court must be

Affirmed.

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Bluebook (online)

54 Iowa 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/getchell-sons-v-musgrove-iowa-1880.