West v. Badger Lumber Co.

43 P. 239, 56 Kan. 287, 1896 Kan. LEXIS 10

• Court: Supreme Court of Kansas
• Decided: January 11, 1896
• Docket: No. 7949
• Status: Published

Opinion

The opinion of the court was delivered by

Allen, J.

: The position of the plaintiff in error is that the title of Parker, having been obtained by fraud, was a nullity, and that no lien could attach to the lots based on any contract made by his authority ; and that in any event the plaintiff was entitled to the purchase price of the property, $3,500, as a prior claim. The plaintiff, in an action brought by him to cancel the deed to Parker and regain his title to the lots, cannot, at the same time, maintain the position of a lien holder, claiming alien for the purchase price of the lots as having been sold and conveyed to Parker. Such claims are utterly incompatible. The plaintiff saw fit to invest Parker with the legal title to the lots. As security against incumbrances by mechanics’ liens which might become prior to the $200 mortgage on each lot he had agreed to take, he saw fit to take a $6,000 indemnity bond, which he now alleges was worthless. Under this state of facts, it would be grossly inequitable to allow him to recover the lots, with the houses on them, which had been constructed with the material and by the labor of the mechanics and material men, freed and cleared of all liens whatever. By his own act he had given Parker the full title to the property, and persons constructing the buildings contemplated by the bargain itself made between him and Parker had a right to rely on Parker’s apparent title to the property. No question is presented by the record as to the validity of the liens, save that arising from the fraud, to which there is no pretense whatever that any of the lien claimants were parties.

It appears from the record that personal judgments against the plaintiff were rendered in favor of D. Cummings and J. W. Moad for the amounts of their liens. This was erroneous, and was doubtless an inadvertency on the part of the person who drew the decree. Their judgments should extend no farther as against the plaintiff than to the enforcement of liens on the property. It is claimed that parts of the claim of Moad were also allowed to Enright and Baly, thus making double charges against the property. This claim seems to be supported by a recital in the record showing that Enright and Baly claimed under Moad. While Moad was entitled to a lien for the whole amount due him, and while his employees were entitled to liens for the respective amounts due them, the decree should contain a provision that, on payment of the sums due Enright and Baly, those parts of their claims which are also included in Moad’s claim should be credited also on the judgment in favor of Moad.

We find no error in tlie allowances of attorneys’ fees as made by the court. Applications are made on behalf of certain mechanics’ lien holders for this court to tax attorneys’ fees in their favor for the services of their attorneys here. We do not think section 638 of the code of civil procedure applies to this court, and this application will be denied.

The judgment will be modified as above indicated, and by striking out so much of it as awards personal judgments against the plaintiff in favor of Cummings and Moad. In all other respects it will be affirmed.

All the Justices concurring.