#### WAGNER, Respondent, v. WAGNER et al, Appellants.

(196 N. W. 499.)

(File No. 5484.

Opinion filed December 21, 1923.)

1. Mechanics’ Mens — Not Superior to *Prior*Vendor’s lien *on*X/and; “Bona Fide Prior Menor.”

A mechanic’s lien arising out of the construction of a dwelling- house, under Rev. Code 1919, Sec. 16 47, is not superior to the rights of a prior vendor of the land on which the house was built, who still holds legal title as security for an unpaid balance; such vendor being a “bóna fide prior lienor” within the statute.

2. Appeal and Error — On Appeals from Judgment, Sufficiency of Facts Found Only Question Presented.

On appeals merely from a judgment, the only question before the court is sufficiency of findings of fact to support conclusions of law and the judgment.

Appeal from, Circuit Court, Hutchinson County; Hon. R. B. Tripp, Judge.

Suit 'by Bertha Wagner against William Wagner, Adam- Audi and Ammon Audi., .copartners doing business as Adam Audi & Son, and another. Judgment .for plaintiff, and defendants Audi appeal.

Affirmed.

*Lars A.*Bruce, of Yankton for Appellants.

Appellant cited: Rev. Code 19.19, Sec. 1647; Berlund v. Wright, 182 N. W. 624.

GATES, J.

Plaintiff sold .certain land to defendant Wagner on a contract which provided for a down payment, a payment of a certain sum per annum to a relative during her life, and a final payment when plaintiff’s title should be perfected. Defendant Wagner went into possession and proceeded to erect a dwelling house. Alleging the completion of her title and the tender of deed and abstract of title, and the neglect and refusal of defendant -Wagner to make the final payment, plaintiff brought this action for-the strict foreclosure of the contract. Rev. Code 1919, §■§ 2914-2917. Defendant Menno Dumber Company and defendants Auch were made parties because of claimed mechanics’ liens arising from the construction of the dwelling house. The trial court made findings of fact and conclusions of law favorable to plaintiff, and entered judgment that plaintiff’s vendor’s lien was *105superior to the mechanics’ liens. The defendants Auch appeal from the judgment.

[1] It is. contended -by appellants that their lien is superior to the rights of respondent, because they say respondent was .the owner of the land. They invoke the provisions of section 1647, Rev. Code- 1919, and they rely upon B'erglund v. Abram, 148 Minn. 412, 182 N. W. 624, which construes a similar statute. So far as here material,- said section 1647 provides:

> “* * * When improvements are made by one person upon the land of another, all persons interested therein otherwise than as bona fide prior incumbrancers or lienors shall be deemed to have authorized such improvements, in so. far as to subject their interests to.the liens therefor. But any person who has not authorized the same may protect his interests from1 such liens by serving upon the persons doing the work or otherwise contributing to such improvement, within five days after knowledge thereof, written notice that the improvement is not -being made at his instance, or by posting like notice, and keeping the same posted, in a conspicuous, place on the premises: Provided, that as against a lessor no lien is given for repairs made by or at the instance of his lessee.”

That section does not warrant the conclusions drawn by appellants, because respondent comes within the exception, to wit, she was a bona fide prior lienor. Upon the execution of the contract, 'defendant Wagner became the equitable owner, and, while respondent still -held the legal title, she held it in trust for the purchaser and as security for the payment oí the balance remaining unpaid on the contract. Reid v. Gorman, 37 S. D. 314, 158 N. W. 780; Phillis v. Gross, 32 S. D. 438, 143 N. W. 373; State ex rel Dillman v. Weide, 29 S. D. 109, 135 N. W. 696.

[2] Appellants further urge that at the least they were entitled to have their lien- established as againát the building and a provision for a sale thereof. 'Suffice it to say that the findings of fact do not bring this case within the provisions of section 1657, Rev. Code 1919, and, inasm'uclj as this- appeal is merely from the judgment, the on-ly question'before us is whether the findings of fact support the conclusions of law and the judgment.

Finding no error, the judgment appealed from is affirmed.

*106Note. — Reported in 196 N. W. 499. See, Headnote (1), American Key-Numbered Digest, Mechanics’ Liens, Key-No. 199, 27 Cyc. 252; (2) Appeal and error, Key-No. 864, 4 C. J. Sec. 2558.