West v. Reeves

73 N.W. 935, 53 Neb. 472, 1898 Neb. LEXIS 427

Opinion

Sullivan, J.

On April 16, 1892, the defendant Reynolds, being the fee owner of certain real estate in Gothenburg, sold the same to his co-defendant, Reeves, who paid a portion of the purchase price, executed promissory notes for the balance, took a bond for a deed, and entered into possession of the property. Afterwards, Reeves bought on credit from the plaintiff material for the purpose of, and which he used in, building an addition to the dwelling-house on the premises. Within the time limited by the statute, a mechanic’s lien for the amount remaining due for this materia] was filed in the proper office. In this action, which was brought by the plaintiff to foreclose his lien, he contends that it is entitled to priority over the lien of Reynolds for the deferred installments of the purchase price of the land. The improvement in question was not made in compliance with any obligation imposed on Reeves by the terms of the contract of purchase. The contract for the material was not made with Reynolds nor with his agent; it was made with Reeves alone, and the lien resulting therefrom can only attach to Reeves’ interest in the land.

It is argued on behalf of the appellee that Reynolds waived his right to a prior lien by reason of his silent observation of the improvement as it progressed. This claim is not backed by the citation of any authority and is not, we think, entitled to serious consideration. Reeves had a right to improve the property and charge his interest therein with the cost of the improvement whether Reynolds consented or objected. His consent would have been immaterial and his objection impertinent. ■ It follows that the defendant Reynolds is entitled to a first lien for the unpaid purchase-money, and that the court erred in subordinating his lien to that of the plaintiff. This conclusion is sustained by the following decisions: Birdsall v. Cropsey, 29 Neb. 672; Irish v. Lundin, 28 Neb. 84; Pickens v. Plattsmouth Investment Co., 37 Neb. 272; Bohn Mfg. Co. v. Kountze, 30 Neb. 719. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.