
    Common Pleas Court of Montgomery County.
    Sunbeam Heating Co. v. Sallie Dukes, Admrx.
    Decided February 3, 1928.
    
      I. L. Holderman, for defendant Couk.
    
      M. K. Margolis, for plaintiff.
   Snediker, J.

This action is brought for the foreclosure of a mechanics lien upon lot No. 11624 of the revised and consecutive numbers of lots on the plat of this city. The contract out of which the case grows was for the installation of a 24 C Sunbeam warm-air furnace. This contract was made between one Lee Dukes and the plaintiff company on the 27th day of October, 1925. The cost price of the furnace is given in the contract as $328; the balance claimed by the plaintiff, after the deduction of all payments made by Dukes is $205.11. The plaintiff sees fit to sue upon the account, although this balance is in fact covered by a promissory note for part and is made up of unpaid payments as to the remainder. The defendant, M. Elizabeth Couk, denies all liability to the plaintiff. At the time of the making of the contract between Dukes and the plaintiff company the former was in possession of this property on a contract of purchase, the requirements of which were that he should make a down payment of $500, and that the balance, together with certain incidental running expenses of the property, such as taxes and insurance, should be.paid in installments. After these payments were made for a period to the defendant, M. Elizabeth Couk, from whom Dukes had bought the property, Dukes, became sick and was unable to complete his contract with the defendant named. Negotiations were had which resulted in' the. surrender of the contract by Dukes to the agent of M. Elizabeth Couk. Dukes died and eventually, after numerous legal proceedings, a writ of restitution was awarded M. Elizabeth Couk, and the property vacated by the Dukes family. It was in the interim, and before Dukes became sick, that this contract for the installation of the furnace was made with the plaintiff by Dukes. After the contract was entered into with the plaintiff it proceeded to and did install the furnace, concluding the primary installation on November 14, 1925. There was some dissatisfaction by Dukes with the amount of heat that was furnished to one of the rooms to which, the testimony shows, a pipe not of proper capacity had been carried from the furnace when it was first installed. This complaint led to the installation of a larger hot air pipe to this room, which was the living room, on January 27, 1927. And the lien here sought to be foreclosed was filed on January 28, 1927. All of the proceedings looking to the recovery of the possession of the property by M. Elizabeth Couk from Dukes and from his family, occurred between the time of the first installation of the furnace and the time when the pipe from the furnace to the living room was installed on January 27, 1927.

There is a claim made about which the testimony conflicts, that prior to the date of the contract made between the plaintiff and Dukes, M. Elizabeth Couk, through her agent, her husband, had been informed that Dukes was expecting to install a furnace and his response was favorable and to the effect that he would help them in the payment for it. Couk’s agent denies that there was any such understanding between this plaintiff and M. Elizabeth Couk, or her agent.

•We may here say that we do not regard this contention as entitled to such favorable consideration as to create a liability of the defendant, M. Elizabeth Couk, to the plaintiff for the purchase price of this furnace, or on that account, to subject her property thereto. The defendant, Couk, regards the installation of the pipe from the furnace to the living room as simply something done in order to qualify the plaintiff for the filing of a mechanics lien. This may be true, but we are unable to find that it was something which was not required to be done by the original contract between the parties. If there was a defective installation originally, then a correction of that defect would be a thing done under the contract, and ought to be regarded, as part of the duty of the plaintiff in the fulfillment of its contract; and, if done, ought to carry with it the right to file a lien for the whole amount, although there had been a lapse of more than a year between the original installation of the furnace and the work performed on January 27, 1927.

So that, we are able to say that in filing its lien, the plaintiff was within the time required by law, and would be entitled to a lien on the interest of Dukes, if any, in the property for the payment of the amount due from the 10th day of November, 1925.

As provided first in Section 8310, G. C., every person who does work or labor upon, or furnishes machinery for constructing, altering or repairing a -house or any furnace or furnace material therein, shall have a lien to secure the payment thereof upon such house and upon the interest of the owner, part owner or lessee in the lot or land upon which it may stand. For a definition of what is meant by the word “owner” in this last quoted section, we turn to Section 8323-9 of the Code, which is to the effect that the word “owner” shall be construed to include all the interest, either legal or equitable, which such person may have in the real estate upon which the improvements contemplated by this act are made, including the interest held by any person in the contract of purchase, whether in writing or otherwise.

So that when the plaintiff filed its lien it became effective to its benefit upon whatever interest Dukes had in this property, and upon that alone.

“The interest of a vendee, whatever may be its character, in the real estate and existing structure, and in the structure created or fixtures attached to the building under his contract, that construction or improvement is subject to a lien. The right, however, to a lien upon the real estate and existing structure at least cannot extend beyond the actual interest of the vendee, except under special circumstances.” Wykes on Mechanics Liens, p. 17.

And such lien upon the interest of the vendee is subordinate to the lien of the vendor for the unpaid purchase money. 11 0. App., 137.

When, in the course of the proceedings which were carried through the courts it resulted that a judgment was rendered that Dukes had no interest, that his administra-trix had none, and that the defendant Couk was entitled to Te-possess the property, the interest of Dukes was extinguished. And at the time of filing this lien and of prosecuting this action, such interest in fact did not exist, Dukes’ contract with Couk having been long since surrendered.

In the case of Steel v. Argentine Mining Co., 4 Idaho, it was held:

“Where in an action to foreclose a mechanics lien it conclusively appears from the record that credit was given to the party in possession of the property, under an option to purchase, and not to the owner of the property, such liens will not, in the failure of the party in possession, and to whom credit was given, to fulfill his contract and avail himself of the option, be enforceable against the owner or his property.”

In the case of Scales v. Griffin, 2 Mich., p. 54, it is held:

“The lien of a mechanic or material man, for labor done or materials furnished in the construction of a building, attaches only upon the interest of a person for whom it was erected; and does not encumber any pre-existing right or title of any other person. If, therefore, when the lien attaches, the person causing the building to be erected, has no title to the premises on which it stands, but a mere right, resting in contract, to a conveyance on the performance of a condition precedent, and that right is afterwards lost by his failure to perform the condition, subsequent proceedings to enforce the lien, will convey no right or title to the purchaser.”

In 6 Wash., at page 540, the syllabus reads:

“Where materials are furnished for a building to one who has possession of the land upon which the building is being constructed under a contract of purchase, a lien can attach only to the interest of the holder of such contract; and on a forfeiture of his rights thereunder, the owner of the legal title is not liable to personal judgment for such materials, nor is his interest in the land subject to a mechanic’s lien therefor.”

So we are unable to find that there was here any title, either legal or equitable, upon which any right of lien could have been exercised by the plaintiff, January 28, 1927, or at this time.

The petition is, therefore, dismissed.  