Summary
In Azwell v. Mohamed, 164 Miss. 80, it is held that the holder of a vendor's lien, not being owners, need not consent in writing to waive lien.
Summary of this case from Davis v. J. W. Rogers Lumber Co.Opinion
No. 30183.
October 24, 1932.
1. VENDOR AND PURCHASER.
Vendor's lien is not "interest in land," but only right to resort to land to satisfy debt.
2. MECHANICS' LIENS.
Holders of vendor's lien, not being "owners" within statute limiting lien, unless alterations are made with owner's written consent, need not consent in writing to waive lien (Code 1930, section 2260).
APPEAL from circuit court of Humphreys county. HON. S.F. DAVIS, Judge.
V.B. Montgomery, of Belzoni, and Lewis F. Owen, of Yazoo City, for appellants.
A vendor's lien is not an interest in land so as to require, on account of the statute of frauds, a written waiver; and as a general rule it may be waived or abandoned by any suitable act or oral declaration showing an intention to do so on the part of one competent to contract.
27 R.C.L., sec. 317, pp. 574-5.
Holder of deed of trust representing to prospective purchaser of timber on land that money derived from timber would pay both holder of deed of trust and buyer, held to waive superior lien in favor of buyer.
Merchants Farmers Bank v. Pool Bros., 140 Miss. 799, 106 So. 627.
A vendor's lien is in the nature of a mortgage. When the lien is expressly reserved in the deed, it is a contract that the land shall be subject to the lien until the purchase money is paid, and it is in reality a mortgage.
Scottish Union National Insurance Company v. Warren Gee Lumber Company, 80 So. 14, 118 Miss. 740.
A vendor's lien can be waived by parol.
Wilkins v. Humphreys, 23 Miss. 311.
The grantor in a deed of trust is the owner of the premises against the world and is the owner as well against the beneficiary and the trustees before condition broken.
Smith v. Forbes, 89 Miss. 141, 42 So. 382; Section 2128, Code of 1930.
A deed of trust to secure a debt is but a security — an encumbrance, and not an estate legal or equitable in the beneficiary, who may resort to the property conveyed as a means to the end of obtaining payment of the debt secured, but has no interest in the property or right to it, except as an incident to the chose of action secured by it.
Beckett v. Dean, 57 Miss. 235.
A mortgagee may, by reason of his having induced the furnishing of labor or material, be precluded from asserting the priority of the mortgage over a mechanic's lien.
40 C.J., Mechanics' Lien, section 386, page 299; Southern Bldg., etc., Association v. Bean (Tex. Civ. App.), 49 S.W. 910; Milwaukee Structural Steel Co. v. Borum, 164 Wis. 502, 159 N.W. 811; 162 N.W. 424; Cummings v. Enslie, 49 Neb. 485, 68 N.W. 621; Elder Merc. Co. v. Ottawa Inv. Co., 100 Kan. 597, 165 P. 279.
H.F. Jones, of Belzoni, for appellees.
An owner within the meaning of section 2260, Code of 1930, is a person who has any estate or interest in the property which is assignable, transferable or conveyable, and which the court may order sold. While a person who has a fee simple estate is, of course, an owner, a person need not be the absolute owner nor own a fee in the land in order to be an owner within the meaning of the statutes.
40 C.J. 93; Bernstein v. Schelben, 111 So. 97.
The term "owner" includes not only those who have an estate in fee in the land, but also those having an estate less than freehold. One having such limited estate can however, as a rule, not create a lien more extensive than his own interest.
3 Tiffany Real Property, page 2769.
As applied to real property, the term "owner" is descriptive of various rights to, and interests in, land, and the meaning of the term varies as titles and rights to real property vary, from the absolute and unqualified fee simple to that of the mere occupant, etc.
50 C.J. 772.
The principle that the mechanics' lien is superior to prior liens does not apply to repairs on machinery, which is part of the real estate, so far as prior encumbrances are concerned, unless by written consent.
Bernstein v. Schelben, 111 So. 97.
The contract owner of the fee, could go no further than to bind such interest as he had, and all other interests must be bound in the manner prescribed by statute.
40 C.J. 281 (par. 350), pages 90, 91, 111.
The history of the mechanics lien statutes, together with the apparent purpose of them when read together, convinces us that it was intended a prior encumbrancer of land should not be injured in his security by a subsequent mechanic's lien for building erected thereon without his consent, but that the mechanics or materialman might enforce his lien against the buildings alone, and not the land, and remove them with reasonable dispatch, which removal would not impair the original security of the prior incumbrancer.
In this case the consent referred to must be the only consent the whole mechanic's lien statute demands anywhere. This consent must be a written consent.
Section 2260, Code of 1930.
Argued orally by V.B. Montgomery and Lewis F. Owen, for appellant, and by H.F. Jones, for appellee.
The appellants brought suit in the circuit court against H. Mohamed, W.C. Phillips, and D. Homod, appellees, for the establishment of a materialman's lien upon a building and the land upon which it was situated, to satisfy the demand of the appellants for materials and labor expended in erecting said building.
D. Homod and H. Mohamed had sold to W.C. Phillips land in the town of Isola, in Humphreys county, reserving thereon a vendor's lien for the unpaid purchase money. Phillips desired to erect a filling station upon this land; it being alleged that the lots were purchased for this purpose, being nonincome-bearing property.
The declaration alleged that the appellants, being unwilling to construct this type of building, which consisted to a considerable extent of concrete, on the credit of Phillips, approached D. Homod and H. Mohamed with reference to waiving their rights, and that they agreed that they would either pay the amount that was due and unpaid by Phillips or would permit a materialman's lien to be applied against the building and lots.
The facts were set forth with clearness in the declaration showing such agreement.
The defendants, Homod and Mohamed, demurred to the declaration on a number of grounds, the substance of which was that under section 2260 a written consent, or consent in writing, was required, to secure waiver of a lien and make it a valid contract, which demurrer was sustained.
It will be seen that Homod and Mohamed only had a lien upon the lots to secure the balance of the purchase money. They did not have an interest in the land itself, but only had security of a right to resort to the land in case default be made in the payment of their debt.
Such a claim or lien is not an interest in the land, but is only a right to resort to it to satisfy a debt. 27 R.C.L., sec. 317, p. 574, and Wilkins v. Humphreys, 23 Miss. 311.
Section 2260, Code of 1930, reads as follows: "If such house, building, structure, or fixture be erected, constructed, altered, or repaired at the instance of a tenant, guardian, or other person not the owner of the land, only the house, building, structure, or fixture, and the estate of the tenant or such other person, in the land, shall be subject to such lien, unless the same be done by the written consent of the owner."
This section requires the owner of the land to consent in writing. The defendants, Homod and Mohamed, in this case, are not the owners within the meaning of that section.
It may be conceded that a person who only had an interest in the real estate itself would be the owner within the meaning of the statute, but the statute does not include a mere lienholder.
The appellees rely largely on the case of Bernstein v. Schelben, 144 Miss. 717, 111 So. 97. This case does not cover the present case. It was dealing with a different situation entirely.
We are of opinion that the court below erred in sustaining the demurrer, and the judgment will be reversed and the cause remanded for further proceedings.
Reversed and remanded.