LOCAL BLDG. & LOAN ASS'N v. LONG-BELL LUMBER CO.

LOCAL BLDG. & LOAN ASS'N v. LONG-BELL LUMBER CO.
1924 OK 955
229 P. 1058
104 Okla. 21
Case Number: 14750
Decided: 10/21/1924
Supreme Court of Oklahoma

LOCAL BUILDING & LOAN ASS'N et al.
v.
LONG-BELL LUMBER CO.

Syllabus

¶0 Pleading -- Mechanics' Liens -- Priority of Mortgage--Time of Furnishing Material--Proof.
In an action to foreclose a mechanic's and materialman's lien and to establish said lien as a prior lien upon certain real estate as against certain defendants holding valid recorded mortgage liens thereon, the failure of said defendants to deny under oath the execution of the note attached to the lien statement and introduced in evidence does not admit as against such mortgage holders a statement of the landowner contained in the note that the last material used in the construction of a dwelling located on the real estate affected by such mortgage liens was furnished within four months prior to filing of the lien statement, and where the undisputed evidence introduced at the trial shows that the last material was furnished nine months prior to the filing of the lien statement, a judgment establishing the lien of such materialman as a prior lien will be set aside.

Everest, Vaught & Brewer, Daniel Huett, and E. F. Smith, for plaintiffs in error.
McKeever & Moore, for defendant in error.

FOSTER, C.

¶1 This case presents error from the district court of Garfield county. The controversy arose between plaintiffs in error, Local Building & Loan Association, a corporation, Mary Weber, administratrix of the estate of David Weber, deceased, Hannah Waken, W. E. McNabb, P. P. Nusz, and Julia Nusz, defendants below, and defendant in error, Long-Bell Lumber Company, a corporation, plaintiff below, as to priority between an alleged mechanic's and materialmen's lien asserted by defendant in error and certain mortgage liens held by certain plaintiffs in error against certain real estate located in City View addition of the city of Enid, Okla., of which P. P. Nusz was the owner. Parties will be hereinafter referred to as they appeared in the court below. The trial court adjudged the defendant in error to be the holder of a valid first mechanic's and materialman's lien upon the property mentioned, superior to the claims of the plaintiffs in error under their mortgages, adjudged Local Building & Loan Association. Mary Weber, administratrix of the estate of David Weber, deceased, and Hannah Waken to be the holders of a valid second, third, and fourth mortgage lien respectively against said property, refused to allow an attorneys fee of $ 160 claimed by Local Building & Loan Association under its mortgage, and rendered judgment accordingly foreclosing the said liens. The answer of the defendant P. P. Nusz disclosed that he had been discharged as a bankrupt on or about the -- day of May, 1922. Motion for a new trial was filed and overruled, and the defendants bring the cause regularly on appeal to this court on petition in error and case-made. It is the contention of the plaintiffs in error that the judgment and findings of the trial court are not sustained by any evidence. The plaintiff introduced its manager, Harry B. Forseman, who testified that plaintiff had lost its journal records, original tickets, and original ledger pages covering the transaction involved, and that the note introduced in evidence by the plaintiff as exhibit "A" and the lien statement as exhibit "B" were the only records plaintiff had of the transaction; that he did not make out the lien statement which was signed by Mr. Pennybaker, former manager of the plaintiff, and did not know of his own knowledge that the dates and amounts set forth in the lien statement were true. Mr. Pennybaker, who executed the lien statement, was not produced as a witness at the trial.

¶2 Among other things, the note introduced in evidence contained this provision:

"This note is given for material purchased by me from the Long-Bell Lbr. Co., and used in the erection and construction of a certain dwelling house located on lot 7, block 3, City View addition to the city of Enid, Garfield county, state of Oklahoma. Last material delivered and used on said dwelling house May 9, 1921."

¶3 It was stipulated that the lien statement introduced in evidence and attached to plaintiff's petition as exhibit "B" was filed in the office of the court clerk of Garfield county on August 22, 1921. These exhibits, the testimony of Mr. Forseman, and the stipulation referred to, constitute all of the evidence introduced by the plaintiff at the trial. The evidence on the part of the defendants disclosed that in the month of May, 1921, the defendant Nusz purchased from plaintiff $ 111 worth of lumber and paint to be used in the construction of a platform or porch to the house in question, upon which he paid in cash the sum of $ 45, and that this addition was immediately thereafter constructed, but that the original contract did not contemplate or include the erection of such porch, and that the house was completed in conformity to the original contract in the month of November, 1920, and some four or five months previous to the date on which the additional material was furnished. This evidence on the part of the defendants was uncontradicted, unless it can be said that the statements contained in the exhibits hereinbefore referred to were in contradiction thereof. It is contended by the plaintiff that inasmuch as the answers of the various defendants were unverified, under provisions of section 287, Comp. Stat. 1921, the execution of the note was admitted, and that the question of whether or not the material purchased for which the lien was claimed was used in the erection and construction of a house in question, and whether the last material was delivered and used in construction of the house on May 9, 1921, were thereby entirely eliminated as elements of proof. It is no doubt true that this state of the record would render the question of the existence of the debt evidenced by the note in question, as between the plaintiff and Nusz, as well as the question of payment thereof by Nusz, as testified to by him, outside the issues raised by the pleadings, but we cannot agree to the proposition that the primary elements of the plaintiff's lien did not remain in issue as against the defendants claiming an adverse interest under their mortgages in the real estate affected by it. One of the elements of such lien is that the last material was furnished within four months prior to the filing of the lien statement.