
    TITLE — MECHANICS’ LIENS.
    [Lucas Circuit Court,
    October 6, 1899.]
    Parker, Hayues and Hull, JJ.
    Mary O. Dakin, Executrix, v. Harvey B. Lecklider et al.
    1. Possession is Ownership within Mechanics’ Lien Law.
    Possession of land is a species of legal title, involving suck a right and interest as makes the possessor an “owner ” within the meaning of the mechanics’ lien law.
    2. Attaches to Interests as Occupying Claimants.
    The lien attaches to any equitable interest in the land growing out of the melioration thereof by the debtor and any right he may have under the statute protecting occupying claimants.
    
      3. Right to Value oe Improvements.
    An occupying claimant has a right to the value of lasting and valuable improvements without respect to the question of whether the owner of the fee so conducted himself as- to be estopped; his equity does not arise out of the doctrine of estoppel.
    4. Equitable Principles Analogous to Statute Available.
    While it is not apparent that the interest of lienors can be worked out in an equitable action through the statute on the subject of occupying claimants, the equitable principles and rules, in which the statute had its origin, were not abolished or superceded by the statute, and may be given effect by a court of equity in analogy to an application of the statute in an action at law.
    Appeal.
   PARKER, J.

■ This case is in this court upon appeal. The only facts brought to our attention are embodied in the agreed statement of facts, a part oi which I shall read. This statement does not go as far as it should, to give us the light we ought to have upon the issues involved. It sets forth:

First. That one Olivia Spaulding, at that time a resident of and domiciled in Ontario county, New York, some time prior to March 21, 1S81, died, seised of the following lands: Lots 18 and 19 in Ketcham’s division, otherwise known as Ketcham’s addition to the city of Toledo, Ohio.

Second. That said Olivia Spaulding died testate; that her last will and testament was dulv probated in Ontario county, New York; that a duly certified c.opv thereof, together with a transcript of said proceedings in Ontario county, New York, duly certified, was, on March 21, 1881, filed for record and was duly recorded at page 328, in volume 7, of the record of trills in said Lucas county probate court.

Third. That one William Stearns was thereafter, by the probate court of Ontario county. New York, duly appointed and qualified as administrator with the will annexed of said Olivia Spaulding: that long prior to the commencement of this action said Stearns died: that at the lime oi the death of said Stearns said estate had been fully administered, except only as to said lots mentioned in paragraph one hereof

Fourth. That on the-day of March, 1899, William O. Dakin, defendant herein, was duly appointed and qualified as testamentary trustee in the probate court of Lucas comity, Ohio, of the said estate of said Olivia Spaulding.

Fifth. That no proceedings whatever have been had in said Lucas county probate court, except as hereinbefore stated; that no proceedings have been had in said Ontario county probate court in any wise relating to said lots hereinbefore mentioned; and at the time of the death of said William Stearns the said lots remained unsold

Sixth. That the w'll of Olivia Spaulding is as follows:

It will be unnecessary to read more than the eighth and ninth paragraphs of this will.

“8. I give and bequeath to Jennie Dakin for and during her lifetime, the use of the avails of lots No. 18 and 19 of Ketcham’s division, as appears upon a plat thereof on record in the recorder’s office in the city of Toledo, Ohio, said lots being situated in said citv of Toledo, on the east side of the Maumee river, and it is my wish and I hereby direct that after the death of the said Tennie Dakin, a sum of not exceeding $300 be taken out of the moneys realized on the sale or disposal, of said lots in the city of Toledo and be used to defray the funeral expenses of the said Jennie Dakin, and that thereafter the remainder of said sum realized on the sale or disposal of said lots be given to the Protestant Orphans’ Home in Toledo, O., to be kept as a perpetual fund for that institution, vhe income only to be used for the benefit of said Home.
“g. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my brother-in-law, Elbridge Dakin, his heirs and assigns forever.”

It is further stated in this agreed statement that Mary O. Dakin is the executrix of the will of Elbridge Dakin, deceased; and that Elbridge Dakin in his lifetime did pay, and since his decease, the plaintiff, as executrix, has paid as taxes upon the property mentioned, the sum of $31.35, and an assessment of $34.50- and further, that on January 21, 1898, the plaintiff, Mary O. Dakm, as executrix of'the estate of Elbridge Dakin, deceased, executed an agreement in writing, a copy of which is given; but it is sufficient here to say that it is an agreement whereby she, for a consideration of $450., to be paid her by H. B. Eeckiider, agrees to convey these lots to him by warranty deed — to convey a good title — and it is agreed that he has made the cash payment of $25.00 provided for in this agreement, but he has paid nothing more.

Then comes the tenth stipulation:

•‘Tenth. That on or about January 8, 1898, the defendant, Harvev R. Eeckiider, entered into a contract with one Frank Preo, defendant herein, whereby said Eeckiider undertook to sell and agreed to convey said'premises by good and sufficient warranty deed, to said Preo upon the terms and conditions of $600, to be paid in said contract; that thereafter said Preo went into possession of said premises, but no conveyance thereof to him was in fact made; that while in possession thereof, and before any default upon the part of said Preo in the performance upon his part Of said contract, said Preo undertook the construction of three cottage dwellings upon said premises; that for the purpose of constructing said cctlages, the defendant Doherty aud Company, Henry C. Wasson, Edward J. Goulet and Myron A. Burger furnished the materials and performed the labor of the amounts, character and value, and at tne times' set forth in their respective cross-petitions herein; and there-affer duly filed said accounts with affidavits thereto in the office of the xecordcr of Lucas count)'-, Ohio, and caused the same to be recorded in all respects as required bv law, for the purpose of obtaining mechanics’ Kens, to secure said accounts, all as set forth in the respective cross-petitions of said defendants; that said Frank Preo. prior to the commencement of this action, abandoned said premises and removed to parts unknown.”

Now it appears, from the statements of counsel, uncontradicted, and perhaps from the pleadings, that after the death of Olivia Spaulding, along about 1881, Elbridge Dakin went into possession of these premises, supposing himself to be the owner thereof, under this clause of the will which makes him the residuary devisee of the estate of Olivia Spaulding; that he remained in possession of the premises up to the time of his decease, paying taxes as set forth in the agreed statement of facts. The property during that time was vacant, no house upon it,and just what his possession was is not distinctly stated, though we presume it was such possession as might be taken of vacant property. Perhaps he cultivated it; we do not know; at all events, it is agreed th'at he had possession, and' his executrix, after his decease, entered into this contract with Lecklider. Tindertaking In good faith to convey the premises to Lecklider. Whether Lecklider went into possession we are uncertain, but Leck-lider made over his interest to Preo, and Preo did go into possession and began the erection of three cottages. It is said they are not all complete ; how near completion they are, is not, stated.

It appears from the will that as a matter of fact Elbridge Dakin acquired no title to this property.

This action in this court was begun by Mary O. Dakin, executrix of the estate of Elbridge Dakin, to foreclose this contract as against Preo, and she makes oarties defendant the. persons who furnished material and labor for the construction of the cottages, and Jennie Dakin, who has a right to the proceeds or avails of this 'property during her lifetime; the Protestant Orphans’ Home, of Toledo, Ohio, which is to be given the avails less $300., which sum is to be appropriated to the burial of Jennie Dakin after her decease, and perhaps some others, averring that they claim to have interests or liens upon the property and asking that they be required to come in and set up their interests or be forever barred.

It appears .that after the action was begun, William O. Dakin was appointed trustee under the will of Olivia Spaulding, deceased, and he was then made a party defendant, and filed an answer and cross-petition, stating what we understand to be the true facts as to this title, and asking that the property may be sold, and the proceeds devoted to the uses and purposes provided in the will of Olivia Spaulding. The persons who furnished material and labor for the construction of these cottages took such measures as were necessary to obtain mechanics’ liens upon whatever interest in the propertr Mr. Preo may have had. That they proceeded according to law to perfect their liens is undisputed; but their right to have anything of the proceeds of the sale of this property — the fact that they acquired liens is disputed and contested here. The contention on behalf of the trustee and those who are united in interest with him, is, that the contracts for labor and material were not made with the owner of the premises, and that, therefore, no lien could be acquired.

Section 3184, Rev. Stat., reads:

”A person who performs labor or furnishes machinery or material lor constructing, altering, or repairing a * * * house. * * * by virtue of a contract with the owner or his authorized agent, shall have a lien to secure the payment of the same upon such * * * house * * * , and upon the interest, leasehold or otherwise, of the owner in the Dt or land on which the same may stand, or to rvhich it may be removed.”

It is contended that Elbridge Dakin had no title to any estate or interest in the land, and therefore he was not an ozvner tvho could enter into a contract with the builders of houses and enable them to procure a lien, but we think what is intended by the word '’‘owner” in this section of the statute, is indicated by the provision that the builder may obtain a lien “upon the material and machinery so furnished, and upon the interest, leasehold or otherwise of the owner in the lot of land, etc.” It is quite apparent from the statute that the interest may be less than a fee simple estate — less than a freehold; and by numerous decisions, it may be at least as small as a leasehold.

[ call attention to Choteau v. Thompson, 2 Ohio St., 114; Dutro v. Wilson, 4 Ohio St., 101: O’Brien v. Meyer, 8 Dec. Re., 777, and Smith & Co. v. Woodruff, 1 Dandy, 277.

Now, it is said in Paine v. Masson, 7 Ohio St., 199, 204, that the possession of land alone is a species of legal title, though the lowest species; and upon that subject, I read briefly from Sedgwick & Waite on Trial of Title to Land, sec. 747. That Preo had obtained possession is a conceded fact in the case, and that his possession was a continuation of that of the person under whom he claimed, a possession continued from the spring of 1881 to January, 1899, is undisputed. It was a possession which might have, within a very short time, ripened into a perfect title. It was a possession which gave him a right to the occupation of the property as against all the world excepting the true owner. I begin to read about the middle of the section:

“It was held in Kansas that possession was a low degree of title, and descended to heirs, and such is the general rule. A debtor, as we have seen, may have a homestead in a possessory interest, and a naked possession may be sold at sheriff’s sale, and the purchaser has the right to recover it in ejectment, and it can be taxed. Possession of land is prima facie evidence of the highest estate in the property, viz., a seizin in fee, and, as we shall see, is alone sufficient to- support ejectment against trespassers or intruders. This is the general rule.”

There follows a further discussion of the matter. Now, in our opinion it involves -such right and interest as makes the possessor an. “owner” within the purview of see. 3184, Rev. Stat. And the lien attaches to such interest and possession and right of possession, if such right exists. It, is enough to meet the technical requirement of the statute that the contract foi labor or material shall be with the “owner.” The debtor himself would not be heard to deny that he was the owner if the effort were made as against him to foreclose these mechanics’ liens. Williams v. Webb, 2 Disney, 430. Nor could he divest himself of such 10 any but an innocent purchaser for value, with the effect of defeating the lien. He could not abandon or surrender to another voluntarily, and effect the result, unless the other could show a stronger equity than the lienor. O’Brien v. Meyer, supra. The mechanics’ lien attaches to any equitable interest in the land growing out of the melioration thereof by the debtor, and any right he may have under the statute protecting occupying claimants, by assuring to them the value of lasting and valuable improvements. This claim for improvements is an equitable Hen, and is treated as an interest in the land. 29 Pa St., 415.

It is contended on behalf of those who assert the mechanics’ liens that a court of equity mav, and ought, in a case of this kind, to order an appraisal of the property in such a way as to have the house appraised' separately from the land, and the land separately from the house, and then have the property sold and the fund divided pro rata; that is to say, the avails or fund arising from the sale of the house to be applied in satisfaction of the liens, on the ground that under the statute the lien attaches to the house or structure as one thing, and upon the interest, if any, of the debtor in the land as another thing, and that one of the results of this is to give the mechanic a lien on the house even if the debtor has-no interest in the land, enforcible against the house alone, and giving the lienor a right thereto, superior to the right of the owner of the land.

And in support of their contention that that may be done we are cited to Choteau v. Thompson, supra. It is not clear to us from that case, that that can or ought to be done, ordinarily, by a court of equity. But here, we have the situation of one in the quiet and peaceable possession of lands making lasting and valuable improvements upon them, giving him rights analogous to those worked out in law cases under the occupying claimant law, and creditors claiming rights and liens against and based upon such interest of the occupier and improver. Whether the owner of the fee or those entitled to the avails, upon the sale of the property, stood by and observed the going forward of these improvements, we are not informed. The pleadings are silent upon the subject and the agreed statement of facts does not enlighten us. But the occupying claimant has a right to the value of lasting and valuable improvements without respect to the question of whether the owner of the fee so conducted himself as to be estopped; his equity does not arise out of the doctrine of estoppel.

It has been suggested that the interests of these lienors might be worked out through the statute on the subject of occupying claimants. Because of the relation of the parties and the nature of the action it is not apparent that the statute can be applied; but the statute had its origin in equitable principles borrowed from the civil law, and well established and enforced by courts of equity long before the enactment of the statute, and those principles and rules are not abolished or superseded by the statute. They mav be given effect by a court of equity when a case is brought in that court in analogy to an application of the statute in an action at law. In such case it amounts to an application of the principle that one asking the intervention of a court of equity on his behalf may be required to do equity as a condition of the granting to him of relief. That tnis may be done and has been done in Ohio appears from Bomberger v. Turner, Admr., 13 Ohio St., 263. I go to the opinion of Peck, J., which I think states the facts sufficiently so that the law laid down and its application to this case may be understood.

“The action is a suit in equity, to subject lands, fraudulently aliened,1 to the payment of a judgment against the grantor, in the hands of the grantee’s heirs, who, as admitted by the demurrer, were ignorant of the fraud, and made the improvements innocently, while in possession of the premises.
“'It would seem from this statement, that the relief asked should have been granted in the same action, in analogy to the relief given in actions tor the iecovery of leal estate, under the ‘act for relief of occupying claimants of land.’ Equity had obtained jurisdiction of the parties and the subject matter. * * * That this may be done, in such cases, by ■courts of equity, is well settled in this state. Henry v. Doctor, 9 Ohio, 49; Salmond v. Price, 13 Ohio, 369.
“It is true that the fraud of Bomberger, found by the court below, avoids the title cast by descent upon his heirs; but they are not charged with actual knowledge of the fraud, and are admitted by the demurrer to have made the improvements innocently, while in possession of the lot; and we are of the opinion that the fraud of the ancestor, of which they were ignorant when the improvements were made, should not deprive them of compensation for their expenditures; especially where the laches of the creditor, as in the present case, left them for a series of years in posession of the premises, thereby inducing a belief that their title was indisputable.
“In our opinion, the demurrer to the additional answer should have been overruled, and the court, having found the transfer fraudulent and void, should have directed an investigation to ascertain the amount of the expénditures for which the defendant, Lowe, was thus equitably entitled to compensation; and this brings us to notice the decree.pronounced by ihe superior court, to which exception is also taken.
‘ The decree orders a sale of the premises to satisfy the judgment, but ‘saves the right of defendants under the occupying claimant law and directs an appraisment of the lot ‘free from improvements made thereon by said defendants.”
“This decree is liable to several objections:
“First. Even if it were a case to which the statute was, in ternas, applicable, the court having possession of the cause, should hat'e administered relief in pursuance of its provisions; but the suit not being of that character, the court should have granted the relief in analogy to the statute, and permitted the defendants to retain possession, until such relief was accorded.”

Another case in which a like doctrine is held, is that of Preston, Trustee v. Brown, 35 Ohio St., 18. I will read but a single paragraph. Here it was apparent, and the court, so holds, that relief could not be obtained by the one in occupancy 'of the premises who had made improvements, under the occupying claimant law; that he did not come within the strict provisions of the statute:

“The right, however, of the defendants for remuneration for improvements which added an increased value to the land, involves other considerations. It is a rule of the common law, but subject to certain exceptions, thal all erections or improvements made upon real estate become a part of the freehold, and the property of its owner. Among the exceptions to the rule, are those that arise at law, under the act for the relief of occupying claimants, and under the act creating liens in favor of mechanics in certain cases; and in equity, in particular cases, where the provisions of the statute do not apply. It also seems to be settled, that a bona Me occupant, sued by the owner of the premises for 1 ents and profits, may, at law, recoup the value of the meliorations by him made while in the occupancy oh the premises.'-’

His right is 1 not limited to the setting off of the improvements against rents and profits; he may avail himself of the right where a recovery of the land is sought, though rent and .profits be not claimed and, as before remarked, the right is not founded upon estoppel in pais.”

A very instructive case upon this subject, showing that rights simply depend upon the bone1 Mes of the occupier, and not upon the equitable doctrine of estoppel, but that compensation is allowed where there is no element of estoppel, is Bright v. Byod first reported in 1 Story 478, and afterwards a farther consideration of the case was held upon the report of the referee, and this reported in 2 Story, 605. From this last report I will read a paragraph, from the language of Judge Story:

“I have reflected a good deal upon the present subject; and the views expressed by me, at the former hearing of this case, reported in 1 Story, R., 478 et seq., remain unchanged; or rather, to express myself more acchrately, have been thereby strengthened and confirmed. My judgment is, that the plaintiff is entitled to the full value of all the improvements and meliorations, which he has made upon the estate, to •the extent of the additional value which they have conferred upon the 'and.
, “It appears by the master’s report, that the present value of the land with the improvements and meliorations is $1,000; and that the present value of the land without these improvements and meliorations is but $25; so that in fact the value of the land is increased thereby $975- This latter sum, in my judgment, the plaintiff is entitled to, as a lien and charge on the land in its present condition. I wish, in coming to this conclusion, to be distinctly understood as affirming and maintaining the broad doctrine, as a doctrine of equity, that, so far as an innocent purchaser for a valuable consideration, without notice of any infirmity. m his title, has, bv his improvements and meliorations, added to the permanent value of the estate, he is entitled to a full remuneration, and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge, before he is to be restored to his oiiginal rights in the land. This is the clear result of the Roman law; and it has the most persuasive equity, and, I may add, common sense-and common justice, for its foundation.”

Now, the case at bar is not an action to recover possession of the premises, but it is, as I nave said, an action in the first instance upon the part of the executiix of Elbridge Dakin’s will, to foreclose this contract with Pieo. The claim of Elbridge Dakin, or his executrix, So any right in this land, appears to be abandoned, and very properly so; so that now dr is but a question between these mechanics, who claim liens, and the owner of the fee; and both are seeking a sale of the premises, the lienors for the purpose of having their liens satisfied, and the trustee for the purpose of obtaining a fund in order that he may put it in the channel diaectcd by the will. Therefore, there cannot be an order made that the value of these improvements shall be paid by the owner before he shall dispossess one undertaking to hold possession ; but an order may be made which will protect the rights and interests of all the parties with respect to the funds arising from the sale of these premises. We are clear that the debtor, Preo, could not abandon nor relinquish his right in such a way as to prejudice the rights and interests of these creditors, and that the value of these improvements should be ascertained; how. we have not determined. Counsel may perhaps agree upon the value of the land and the value of the buildings; or they may have it ascertained through an appraisement, if they choose; or if that is not satisfactory to the parties, we may perhaps refer the case and allow testimony to be taken. Of course what is to be ■ ascertained is, the added value to the lots. Not what the buildings cost, but how much more valuable the lots are in consequence of the buildings being erected upon them.

I see but one of the counsel of the different parties in court, but, through the stenographer’s report, they will obtain knowledge of our conclusions in the case, and by one of the processes suggested, the court will undertake to arrive at the value of these improvements and allow the proceeds in so far as they are the avails of the value of the improvements to be applied in satisfaction of the mechanic's liens.

The claim for taxes paid by Dakin and his executrix is the first lien upon the premises, and that should be paid from the avails of the land without respect to the building's, for the reason that those taxes and assessments were all levied and paid befo,re any buildings had been erected upon the premises. The costs will be paid from the avails of both land and improvements.’

Delphy & Corbitt, H. S. Bunker, B. P. Reno and W. J. Gill, for mechanics’ lien-holders.

Seney & Johnson, Smith & Baker, and Ira H. Lecklider, for claimants of lots.  