# Red River Valley National Bank of Fargo v. Craig

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United States Supreme Court
181 U.S. 548
Red River Valley National Bank of Fargo v. Craig
Argued: and Submitted April 11, 1901. --- Decided: May 13, 1901
This action was brought to enforce certain described in the complaint. The trial resulted in a judgment in favor of the lienors, which on appeal was affirmed by the supreme court of the state, and the Red River Valley National Bank of Fargo, one of the defendants below, has brought the case here by writ of error.
The trial court found the following facts: On July 8, 1884, Elvira Cooper was the owner of the property, being lot 6, block 5, of the original town site of Fargo, Cass county, North Dakota, and on that day she, with her husband, mortgaged it to secure the payment of the sum of $3,000 to the Travelers' Insurance Company of Hartford, Connecticut. Prior to January 1, 1893, the mortgagor sold and conveyed the property, subject to the mortgage, to one Rosa Herzman, who remained the owner until the foreclosure of the mortgage under the statute and the sale of the property to the insurance company, which took place on May 7, 1894, and on that day a sheriff's certificate of sale was issued to it. On January 12, 1895, the insurance company assigned this certificate of sale to the plaintiff in error, and on May 17, 1895, it received from the sheriff a deed of the premises. During the time of the ownership of the property by Rosa Herzman she erected upon the lot a two-story and basement brick building, which was completed by February 3, 1894, and which still remains on the lot in good condition. During the summer and fall of 1893 various work was done and materials furnished upon and for the building for which the owner of the premises failed to pay in full, and thereafter and between November 17, 1893, and February 2, 1894, various persons who had furnished materials or performed work and labor for and in the erection of the house filed their liens, and subsequently, on November 15, 1898, commenced this action to foreclose the same against (among others) the plaintiff in error as the owner of the property.
It was also found by the court that the east and west walls of this new two-story brick building were party walls, the east wall standing equally upon its own and the adjoining lot, while the west wall stood wholly upon its adjoining lot, and the walls were built in pursuance of an agreement to that effect between the owners of the different lots, so that the building in question and those on each side constituted a solid row of three brick buildings belonging to different owners, and the building was incapable of being removed from the lot unless it were first torn down. It was also found that it would be for the best interest of all parties that the land and the improvements thereon should be sold together, and that the land and the improvements were of equal value, each one being at least of the value of $2,500. The judgment, after adjudging the amounts of the liens of the various parties, gave the plaintiff in error the privilege of paying the same within thirty days from the service of a copy of the judgment, and in default, after proper notice, the property was directed to be sold by the sheriff of Cass county, and of the moneys received therefor one half was directed to be paid and delivered to the plaintiff in error, and from the other half the lienors were to be paid, and if there were any excess after such payment it was to be paid over to the bank.
At the time of the execution of the mortgage the mechanics' lien law then in existence was known as chap. 31 of the Code of Civil Procedure, as found in the Revised Codes of 1877. Sections 655, 666, and 667 are set out in the margin.
At the time when the work was done upon, and the materials furnished for, the erection of the house, the mechanics' lien law in force is to be found from §§ 5468-5485, Comp. Laws N. D. 1887. Section 5469 is the same as § 655, of chap. 31, above mentioned, with the exception of an immaterial addition at the end of the section, while § 5480 is identical with § 666 of that chapter. Section 5481 is a substitute for § 667 of the same chapter, and is set forth in the margin.
It is evident that the law was in substance the same on this subject when the mortgage was executed and when the work was done and the materials furnished.
The mechanics' lien law in existence at the time that this action was brought is to be found from §§ 4788-4801, Revised Code of 1895. Section 4788 would seem to be a substitute for § 655 of chapter 31, above mentioned, and § 4795 is a substitute for § 666 of the same chapter. These sections are placed in the margin.
Messrs. Ira B. Mills, Wm. C. Resser, and Ernest B. Mills for plaintiff in error.
Mr. S. B. Pinney submitted the case for the defendants in error, and Messrs. George W. Newton, E. H. Smith, John D. Benton, V. R. Lovell, and C. L. Bradley were with him on the brief.
Mr. Justice Peckham, after making the above statement of facts, delivered the opinion of the court:

## Notes

* ↑ Chapter 31, Code of Civil Procedure of the Revised Codes of 1877, Territory of Dakota.
* ↑ Compiled Laws, Territory of Dakota, 1887.
* ↑ Chapter 77, Revised Codes, North Dakota, 1895.
Sec. 4788. Who may have and for what.-Any person who shall perform any labor upon or furnish any materials, machinery, or fixtures for the construction or repair of any work of internal improvement or for the erecting, alteration, or repair of any building or other structures upon land, or in making any other improvement thereon, including fences, sidewalks, paving, wells, trees, drains, grades, or excavations under a contract with the owner of such land, his agent, trustee, contractor or subcontractor, or with the consent of such owner, shall, upon complying with the provisions of this chapter, have for his labor done, or materials, machinery, or fixtures furnished a lien upon such building, erection, or improvement, and upon the land belonging to such owner on which the same is situated, or to improve which the work was done or the things furnished, to secure the payment for such labor, materials, machinery, or fixtures. The owner shall be presumed to have consented to the doing of any such labor or the making of any such improvement, if at the time he had knowledge thereof and did not give notice of his objection thereto to the person entitled to the lien. The provisions of this section and chapter shall not be construed to apply to claims or contracts for furnishing lightning rods or any of their attachments.
Sec. 4795. When prior to prior lien on land. Power of court. The liens for the things aforesaid or the work, including liens for additions, repairs, and betterments, shall attach to the building, erection, or improvement for which they were furnished or done in preference to any prior lien or encumbrance or mortgage upon the land upon which such erection, building, or improvement belongs or is erected or put.
If such material was furnished or labor performed in the erection or construction of an original and independent building, erection, or other improvement commenced since the attaching of such prior lien, encumbrance, or mortgage, the court may in its discretion order and direct such building, erection, or improvement to be separately sold under execution, and the purchaser may remove the same within such reasonable time as the court may fix. But if in the opinion of the court it would be for the best interest of all parties that the land and the improvements thereon should be sold together, it shall so order, and the court shall take an account and ascertain the separate values of the land and of the erection, building, or other improvement, and distribute the proceeds of sale so as to secure to the prior mortgage or other lien priority upon the land, and to the mechanic's lien priority upon the building, erection, or other improvement.
If the material furnished or labor performed was for an addition to, repairs of, or betterments upon, buildings, erections, or other improvements, the court shall take an account of the values before such material was furnished or labor performed, and the enhanced value caused by such additions, repairs, or betterments, and upon the sale of the premises distribute the proceeds of sale so as to secure to the prior mortgage or lien priority upon the land and improvements as they existed prior to the attaching of the mechanic's lien and to the mechanic's lien priority upon the enhanced value caused by such additions, repairs, or betterments.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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