Millard & Co. v. West

50 Iowa 616

• Court: Supreme Court of Iowa
• Decided: April 24, 1879
• Status: Published

Opinion

Rothrocic, L

i. mechanic's of Hens. Leebrick has at all times since his agreement with Tate been the holder of the legal title to the lot in controversy. At the time the lumber was furnished Lean West had an equitable interest, under the bond for a conveyance, upon the payment of the purchase money. The plaintiffs were entitled to a mechanic’s lien upon that interest, but Leebrick, having no notice of the lien, and before the same was filed, made a new bond to Louisa West. It is not claimed by appellees that the mechanic’s lien is superior to the lien of Leebrick. It is correct, as claimed by counsel for appellees, that plaintiffs had the right, to foreclose the mechanic’s lien, and if they had made no other parties than those against whom they held the lien,, they might have foreclosed and sold their equity; but when they made Leebrick a party defendant, they had no right to-a decree for the sale of the whole title to the property, without either providing for the payment of the costs of the sale in case it did not sell for enough to pay the claim of Leebrick, and the cost, or paying off Leebrick’s claim before taking special execution for the sale of the property. In other words, Leebrick is entitled to payment in full of his claim without costs, before plaintiffs can, by a sale, deprive him of his title.

The decree should have been such as to fully protect him in the payment of his claim without the contingency of its being reduced by the costs of a sale. This decree and the ruling upon the motion to order in the execution, if allowed to stand, would permit the plaintiffs to order an execution at any time within the statute of limitations, and if the property should not sell for enough to pay Leebrick and the costs of sale he must, in effect, pay the costs; and in the meantime, while he is waiting the pleasure of the plaintiffs. to enforce the decree, if he improve the property it must be at his peril. The decree should have required the plaintiffs to pay off Leebrick’s lien before proceeding with a sale of the property, and, in the event of their failure to pay within a time to be named, their mechanic’s lien should have been barred.

Be VERSED.