BRADEN CO. v. ROBINSON

BRADEN CO. v. ROBINSON
1934 OK 755
43 P.2d 437
171 Okla. 278
Case Number: 23024
Decided: 12/27/1934
Supreme Court of Oklahoma

BRADEN CO.
v.
ROBINSON et al.

Syllabus

¶0 1. Appeal and Error--Finding or Judgment not Disturbed Where not Appealed by One Adversely Affected.
A finding of fact and judgment based thereon will not be disturbed by this court where no appeal has been taken therefrom by anyone adversely affected thereby.
2. Mechanics' Liens--Right to Lien on Improvements Made on Lot Though Contract not Made With Owner of Lot.
A person who performed labor or furnished material for the improvement of a lot, within the meaning of section 10975, O. S. 1931, has a lien on the improvements, separate and apart from the real estate, even though the title to the land improved is not in the person with whom the contract for labor or material was made.
3. Same--Lien on Improvements Co-Equal with Lien of One Contracting with Owner of Lot.
The lien of one who performs labor or furnishes material for the improvement of a lot, within the meaning of section 10975, O. S. 1931, under a contract with one who is not the owner of the lot, has a lien on the improvements, separate and apart from the real estate, co-equal with the lien on the improvements of one who performs labor or furnishes material for the improvement thereof under a contract with the owner of the lot.
4. Same--Right to Require Holder of Lien on Both Lot and Improvements to Exhaust First His Lien on Lot.
Under the provisions of section 10951, O. S. 1931, a lien claimant who has a lien on a lot and on the improvements thereon may be required in equity to exhaust his lien on the lot before proceeding against the improvements by one who has a lien on the improvements and not upon the lot.
5. Same--Mechanics' Liens on Improvements Constructed Under Contract with One not Owner of Lot Held Superior to Vendor's Lien for Purchase Price of Lot.
When a laborer performs labor or when a materialman furnishes material for the construction of improvements on a lot under a contract with one who is not the owner of the lot, the laborer and the materialman have liens upon the improvements, separately from the real estate, which liens are superior to a vendor's lien for the unpaid purchase price of the lot.

Appeal from District Court, Tulsa County; Owen Owen, Judge.

Action by L. A. Robinson against the Braden Company, an express trust, and others. From the judgment, the defendant named appeals. Reversed and remanded, with directions.

Allen, Underwood & Canterbury, for plaintiff in error.
Chas. R. Nesbitt, for defendant in error.

ANDREWS, J.

¶1 L. A. Robinson, one of the defendants in error, instituted an action in the district court of Tulsa county against W. J. Whittaker, the grantee of the real estate in question under an executory contract with the Braden Company, the Braden Company, the grantor in the contract, and certain other persons, firms and corporations who claimed liens on the property, for the purpose of judicially establishing a lien and the extent and priority thereof. The trial court rendered a judgment, from which only the Braden Company appealed.

¶2 The question as to agency, if any, existing between Whittaker and the Braden Company is not before this court.

¶3 The plaintiff in his petition alleged the existence of an oral contract between himself and L. O. Miller, the contractor, to furnish the material so furnished by him. None of the lienholders claim to have had a contract with the owner, the Braden Company, to furnish labor or material except the Lancaster Lumber Company, who had a written waiver and consent from the Braden Company only to the extent of materials furnished by the Lancaster Lumber Company.

¶4 The Braden Company contends that none of the lien claimants are entitled to any claim or lien on the real estate involved as against the Braden Company except the Lancaster Lumber Company, who dealt directly with and obtained a waiver from the Braden Company for material to be furnished. With that contention we fully agree.

¶5 It is the further contention of the Braden Company that the trial court should have granted the Lancaster Lumber Company a first and prior lien upon the whole property including the improvements. With that contention we do not agree.

¶6 It is further contended by the Braden Company that it should have been granted an interest in the whole property, including the improvements, to the extent of the unpaid purchase price, subordinate only to the claim of the Lancaster Lumber Company, and that all other lien claimants should have liens, if at all, inferior and subordinate to the Lancaster Lumber Company and the Braden Company. With that contention we do not agree.

¶7 Those questions have been decided contrary to the contention of the Braden Company, in the case of the Braden Company, An Express Trust, v. Lancaster Lumber Co. et al., 170 Okla. 30, 38 P.2d 575.

¶8 Section 10975, O. S. 1931, provides for liens of laborers and mechanics when the labor is performed or the material furnished, and further provides:

"Such liens shall be preferred to all other liens or incumbrances which may attach to or upon such land, buildings, or improvements or either of them subsequent to the commencement of such buildings, the furnishing or putting up of such fixtures. * * *"

¶9 When the real estate was conveyed under an executory contract by the Braden Company to Whittaker the only lien the vendor had was the vendor's lien against the real estate sold. No lien could attach to the improvements until the improvements were constructed, while the laborer and materialman acquired their lien upon the improvements when they performed the labor or furnished the material, and the lien of the vendor against the improvements is a subsequent lien to that of the laborer or materialman. The only advantage the Lancaster Lumber Company obtained over other lien claimants in dealing directly with the Braden Company, the owner, and securing a waiver for the material to be furnished, was in securing a superior lien on the real estate. In so far as its lien against the improvements, it obtained no greater or superior lien on the improvements to that of any other lien claimant furnishing labor or material. The fact that some of the lien claimants contracted with the building contractor and others with Whittaker, the executory grantee of the real estate, is immaterial and did not vary the character or priority of their liens. The right of the Braden Company does not depend upon a lien against the real estate, because it retained the title to same and the executory vendee cannot prejudice such title and can cause it to be divested only by paying the price according to the terms of the contract. Stuart v. Westerheide, Adm'r, et al., 144 Okla. 150, 289 P. 721.

¶10 The court should have rendered judgment for the Lancaster Lumber Company, making the same a lien on the real estate superior to all other claimants thereon, and co-equal with the liens of the other materialmen and contractors on the improvements, and inferior only to the liens of the labor claimants on the said improvements.

¶11 Judgment should have been rendered in favor of the Braden Company for the purchase price of the real estate, with lien on the real estate, inferior only to the lien of the Lancaster Lumber Company and with lien on the improvements inferior to all other lien claimants.

¶12 The judgment of the trial court is reversed and the cause is remanded, with directions to set aside the judgment rendered herein and to render judgment in accordance with the instructions herein set forth.