Henry & Coatsworth Co. v. Fisherdick.

class." An examination of the opinion in this case leads to the conclusion that the California statute on which the opinion is based is very similar to the Nebraska statute.

In the case at bar all liens, except those of Holmes and the Coatsworth Company, were for labor performed or material furnished, the commencement of the doing and the furnishing which was after the recording of the Drexel mortgage. This mortgage was then, correctly decreed by the court below, a lien on the property prior to all liens except those of Holmes and the Coatsworth Company.

The district court gave the third lien to only a part of those who claimed liens for material furnished for the improvement, the commencement of which was after the Drexel mortgage, viz., Baird Bros., the Capital City Planing Mill Company, H. B. Dodge & Co., the Crane Elevator Company, and the Reliance Wire Works Company. These were, by the decree, to prorate each with the other, but the court postponed to these liens the following, also for material furnished in the erection of the improvement, the commencement of which furnishing was after the Drexel mortgage, viz.: Korsmeyer & Co.; Pomeroy Coal Company; W. H. Tyler; C. N. Deitz; Nicholls Roofing Company; S. E. Moore; the Adamant Wall Plaster Company; C. E. Hedges; Rudge & Morris; the Lincoln Glass Company; G. Andrew; the Midland Electric Company; F. A. Nason & Co.; William Gaiser; William Robinson; A. T. Leming; R. S. Young, and J. H. O'Neill. All these postponed liens had been assigned to the appellant Trust Company, and it claimed, and claims now, it stood in the same situation as its assignors.

It is clear from the authorities that all the liens for materials furnished or labor performed, the commencement of the doing or the furnishing which was after the recording of the Drexel mortgage, belonged to the same class, and are entitled to and do prorate with each other. Why, then, should not the assignee of some of these claims be allowed

Henry & Coatsworth Co. v. Fisherdick.

to prorate if his assignor could? "Under our law, the assignee (of a mechanic's lien) is subrogated to all the rights of the assignor." (Chief Justice MAXWELL in Rogers v. Omaha Hotel Co., 4 Neb., 59.) The district court appears to have postponed these assigned liens on the theory that they were merged in the mortgage given by Mrs. Bond to the appellant Braley, agent of the Trust Company, on February 17, 1890, as the consideration for this mortgage was used in buying up these liens for and in the name of the Trust Company. But did the liens merge in the mortgage?

In Smith v. Roberts, 91 N. Y., 470, it is said (I quote from the syllabus): "While a merger at law follows upon a union of a greater and a lesser estate in the same ownership, it does not follow in equity, and estates will be kept separate where such is the intention of the parties and justice requires it. That intention may be gathered not only from the acts and declarations of the party, but from a view of the situation as affecting his interests."

Now there is no direct evidence in the record that either the assignors or the assignee of these liens intended they should merge in the mortgage; and if we turn our attention to the situation of the assignee, the Trust Company, it certainly was against its interests they should merge. We can almost say that had the Trust Company expected them to merge, it would never have advanced the money for the purchase of the liens; and, to apply the doctrine of merger here, would be manifestly unfair and unjust. Had the Trust Company not bought these liens, they would have prorated with the others of their class, so that the others are not in the least prejudiced by their not merging, but the Trust Company is prejudiced if they are. adopt the rule in the above case as both sensible and just, and conclude that the decree of the district court, postponing the liens assigned to the Trust Company, was erro

neous.

We

Complaint is made by some of the numerous appellants

Henry & Coatsworth Co. v. Fisherdick.

of the allowance by the court below of liens to certain parties, viz., the Capital City Planing Mill Company. The objection to this lien is that the affidavit filed is not sufficient to entitle the claimant to a lien. The affidavit (omitting the formal parts) was as follows: "John A. Buckstaff, being first duly sworn, on his oath says:

* *

of materials *

It is signed "Capi

tal City Planing Mills, Badger Lumber Company, owners, per J. A. Buckstaff, Sec'y." The heading of the itemized statement, to which the affidavit for a lien is attached, is as follows: "Lincoln, Nebraska, Apr. 15, 1890. Mrs. M. Isabelle Bond, To Capital City Planing Mills, Badger Lumber Company, Owners, Dr." Section 3, chapter 54, Compiled Statutes, provides: "Any person entitled to a lien under this chapter shall make an account in writing of the items * and after making oath thereto," etc. This affidavit is not within the letter of the statute. Is it within the spirit of the law?

In Rogers v. Omaha Hotel Co., 4 Neb., 58, Chief Justice MAXWELL, speaking for this court, said: "The object of the law under consideration (mechanic's lien law) being to secure the claim of those who have contributed to the erection of a building, it should receive the most liberal construction to give full effect to its provisions." This case is cited with approval in White Lake Lumber Co. v. Russell, 22 Neb., 126.

In Delahay v. Goldie, 17 Kan., 263, it is said: "Under the mechanic's lien law * * * the statement required to be filed may be verified by an agent of the claimant.”

This affidavit and account as filed sufficiently show that the Capital City Planing Mill Company had furnished material to Mrs. Bond for the erection of the hotel, and while the affidavit bears on its face the evidence of carelessness, it sufficiently shows that Buckstaff was the agent of the claimant. We hold, therefore, that it sufficiently

Henry & Coatsworth Co. v. Fisherdick.

complied with the statute. (See also Phillips, Mechanics' Liens, sec. 366, and cases there cited.)

The Crane Elevator Company.-The objection to this lien is that by the contract between the elevator company and Mrs. Bond, under which the fixture was delivered to her, it was provided: "The title and possession of the elevator shall remain in the Crane Elevator Company until the final payment shall be made, and they shall have the right at all times, on the failure on your part to make all payments as provided, to remove the elevator and retain possession of it, and also to retain all payments that have been made, as liquidated damages for non-fulfillment of the contract."

*

Section 1, chapter 54, Compiled Statutes, provides: "Any person who shall furnish any fixture." The elevator, within the meaning of this law, is a fixture; and, uninfluenced by authority and looking only to this statute, we would say that to entitle a party to a lien for this fixture he must part with the possession, the right to the possession, and with the title to it. The contract between the elevator company and Mrs. Bond was and is good as between them, and as to all other persons except purchasers without notice and judgment creditors of Mrs. Bond. (Aultman v. Mallory, 5 Neb., 178; McCormick v. Stevenson, 13 Id., 70.)

In Clark v. Moore, 64 Ill., 279, one of the questions was whether the retention by the vendor of the right to the possession and title was a waiver of the vendor's right to a mechanic's lien, the court say: "It is also insisted that appellees waived their lien when they sold the property by reserving a lien upon it in the written contract; that they thereby received and held additional security that operated to destroy any lien that would otherwise have attached. * * * In their effort to retain a lien on the machinery furnished by appellees they took no collateral or independent security. The lien attaches to and incumbers

* * *

Henry & Coatsworth Co. v. Fisherdick.

the property to improve which the material is furnished, and the efforts to acquire a more specific and exclusive lien thereon in nowise manifests an intention to release the property from all lien and to look to other security for payment, but it shows the very opposite intention, an intention to hold, if possible, the property furnished liable for the payment of their claim."

In Case Mfg. Co. v. Smith, 40 Fed. Rep., 339, it is said: "Retention by a seller of title to machinery placed on land until the price is paid, with a reservation of the right in case of default in payment, to take possession of and remove such machinery without process, is not a waiver of the lien given by the code." (Tenn., sec. 2739.) The opinion cites enough of the Tennessee code to show that it is not materially different from the Nebraska law. It also cites Anthony v. Smith, 9 Humph. [Tenn.], 508, and Fogg v. Rogers, 2 Cold. [Tenn.], 290, as sustaining the doctrine laid down in the trial case.

Following these authorities, which we do with reluctance, we have reached the conclusion that the finding and decree of the district court giving the Crane Elevator Company a lien must be sustained.

H. B. Dodge & Co.-There are two objections to this claim. The first is that the affidavit filed with the itemized account was made by H. B. Dodge and that it recited that the materials were furnished by the affiant; the affidavit was signed by H. B. Dodge. An examination of the account attached to the affidavit, however, discloses the fact that the account was between H. B. Dodge & Co. and Mrs. Bond, and it sufficiently appears that the material was furnished by H. B. Dodge & Co. In view of what has been said above in reference to the affidavit of the Capital City Planing Mill Company, we think this affidavit sufficiently complies with the statute, and that the finding and decree of the district court giving Dodge & Co. a lien was not erroneous so far as the affidavit is concerned.