#### E. D. Janes v. J. S. Osborne *et al.,*J. B. Jones, Appellant, and Keith Furnace Co., Intervener.

1 Mechanic’s Lien. Laws Sixteenth' General Assembly, chapter 100 section 3, provides that every person who furnishes material or labor under a contract with the owner, agent, or contractor for a building shall have a lien upon the building and the land. Section 10 provides that the word “owner” shall include every person for whose benefit any building is erected. The owner of the land contracted with another to sell the land. The purschaser agreed to pay a part of the price on delivery of the deeds, and to secure the balance by a mortgage, to be jpnior to another morir *410gage *to*be placed thereon by the purchaser, not to exceed $1,500, to secure funds with which to pay for improvements which he agreed to make. The purchaser did not make the first payment, but with the consent of the owner, made the improvements but did not negotiate the mortgage. *Held,*that persons furnishing material and labor in making such improvements are entitled to a lien on the premises to an amount not exceeding $1,500.

3 Liens: vendor and purchaser. A vendor is not entitled to a prior lien for the amount of the purchase price which was to have been paid in cash at the time of the contract, but which was never paid, over a mechanic’s lien for labor and material furnished in the erection of a house thereon by the purchaser under such circumstances as to make the lien attach to the land as well as to the building, where the contract shows that the vendor did not intend to reserve any lien for such amount, but expressly gave the cost of the house priority to his claim for purchase money.

2 Buildings: *Owners.*Provisions of laws, Sixteenth General Assembly, chapter 100, section 10, that every person for whose immediate use or benefit any building, erection, or other improvement, is made, having the capacity to contract, shall be included in the word “owner,” is not a limitation upon section 3, giving a lien for labor or material furnished for any building or other improvement upon land by virtue of any contract with the owner; but extends the definition of the term “owner” so as to include persons who would not ordinarily be held to come within its meaning.

*Appeal from Polk District Court.*— HoN. W. E. Conbad, Judge.

Tuesday, May 16, 1899.

Actiof in equity to establish and foreclose a mechanic’s lien. From a decree in favor of plaintiff and other mechanic’s lien claimants, who are made defenjdants and whose rights are asserted by cross petitions, the defendant Jones, owner of the real estate, *appeals.*

— Affirmed.

*Carr & Parker*and *Ira W. Anderson*for appellant.

*Bead & Bead, Phillips, Byan & Byan, C. C. & C. L. Nourse, J. K. Macomb er, Dudley & Coffin, 8. Q. Van Auken, A. W. Miller,*and *Cummms} Hewitt & Wright*for appellees.

*411"WatermaN, J.

1 — Tbe case presents tbe question of tbe right of tbe mechanic's lien claimants to a lien upon the real estate. Tbe defendant Jones, being tbe owner of the real estate, entered into a written contract with one Osborne as follows: “This agreement, made this 27th day of April, 1895, by and between J. B. • Jones, of tbe one part, and J. S. Osborne, of tbe other part, witnessetb that said Jones has agreed to sell to tbe said Osborne lot 16, in block 1, Layman’s addition to tbe city of Des Moines, for the sum of nine hundred dollars, payable as follows: three hundred dollars on delivery of deed for said lot, and tbe payment in monthly payments of ten dollars each, payable on the 1st day of each month, with annual interest on all sums unpaid at the rate of seven and a half per cent., and interest to be paid on such monthly payments as the same becomes due, said unpaid balance to be secured by mortgage on said lot, which shall be junior to a mortgage, not to exceed one thousand five hundred dollars, to be placed thereon by said Osborne, being a five-year loan. Said second party agrees to build an eight-room house of first-class material and workmanship in every particular, and modem in its style, the same to be supplied with furnace, mantle, bathroom, and to be completed within sixty days.” Osborne did not make the eash.payment of three hundred dollars, nor did he mortgage the lot to raise the stun of one thousand five hundred dollars, but he did prepare plans for a house such as was provided for in the contract, submitted them to Jones, by whom they were approved, am'd then proceeded to have such house erected. The claims for mechanics’ liens are for the labor and material supplied in the erection of the building, and the court below allowed such liens against the real estate to the amount of one thousand five hundred dollars, as against Jones. The contention of the latter is that, while the claimants are entitled to liens on the building, they are not to liens upon the real estate, and that, in any event, he should have had a prior lien on the land for the three hundred dpi-*412lars cash payment provided for in the contract, bnt which was never made.

2 3 Section 3, chapter 100 Laws Sixteenth General Assembly, is, in its material parts, as follows: “Every mechanic or other person who shall do any labor upon or furnish any material, for any building * * * or other improvement upon land, by virtue of any contract with the. owner, his agent, trustee, contractor or subcontractor, shall have * * * a lien upon such building, erection or other improvement and upon the land belonging to such owner on which the same is situated, to secure the payment of such labor,” etc. Section 10 of the same act is in these words: “Every person for whose immediate use or benefit any building, erection or other improvements is made, having the capacity to contract, including guardians of minors or other persons, shall be included in the word ‘owner.’ ” In our opinion, this last section is not a limitation upon the first one quoted, but is intended to extend the definition of the term “owner” so as to include persons who would not ordinarily be held to come within its meaning. Section 4 of the act mentioned provides that “the entire land upon which such building, erection or other improvement is situated, including that portion of the same not covered therewith, shall be subject to all liens created by the chapter to the extent of all the right, title, and interest owned therein by the owner thereof, for whose immediate use such labor was done or things furnished,” etc. Under these provisions appellant claims that Osborne was an “owner-;” that his interest, which was an equitable one only, was all that could be subjected to the liens; and that the legal title or interest of Jones cannot be affected thereby. We think this construction leaves out of consideration one important provision of the contract between Jones and Osborne. If Osborne had mortgaged the premises for the sum of one thousand five hundred dollars, and used the money sq realized jq *413building tbe bouse, it seems manifest tbat under tbe contract snob incumbrance would bave taken precedence of any claim or lien of Jones, tbe vendor. Tbis was tbe express agreement. If tbe cost of tbe building, up to tbe amount of one thousand five hundred dollars, would in tbat form bave been a first lien, we can see no reason why it should not be so treated when asserted, as here, by the mechanics. Tbe purpose of tbis agreement was to induce and aid Osborne to add to tbe value of tbe real estate purchased, and tbis be has done. Tbe security which tbe vendor agreed to take is tbat which tbe trial court awarded him, — a lien upon tbe real estate, subject to tbe cost of tbe improvements or betterments. It appears to us tbat, under tbis contract, Osborne acted as tbe agent of tbe vendor, in a certain sense, in building the bouse.

Appellant combats tbis idea, and insists tbat tbe trial court did not so find, for it gave no personal judgment against Jones to tbe mechanic’s lien claimants; but we bave held tbat one may be an agent of the owner, to an extent sufficient to bind tbe real estate for improvements thereon, though bis acts may not render tbe owner personally liable. *Willverding v. Offineer, 87*Iowa, 418; *Miller v. Hollingsworth,*36 Iowa, 163. Under tbe statutes referred to, tbe land is bound for tbe cost of tbe improvements when tbe contract therefor is made with tbe “owner, bis agent,” etc. In tbe case at bar Jones not only authorized, but required, Osborne to make tbis improvement upon tbe land. He knew tbe work was being done as it progressed, and be knew tbat, in order to pay for it, Osborne would bave to give a first lien on tbe lot, for be expressly sanctioned such a lien. Tbe facts bring tbis case clearly within tbe rule announced in the two eases cited above. Appellant relies upon tbe case of *Pinkerton v. L&*Beau, 3 S. D. 440 (54 N. W. Rep. 97), decided under a statute similar to ours. But in tbat case tbe owner did not agree tbat tbe cost of tbe building should take precedence of bis claim for tbe purchase price. Tbe effect of such an agree*414ment is to pledge the land to pay for the improvement. So far as appears in the *Le Beau Case,*the vendor expected the vendee to pay for the building from another source than the land, and this distinction we take to be material. It is this feature of the present case which distinguishes it also from *Logan v. Taylor,*20 Iowa, 297; *Stockwell v. Carpenter,*27 Iowa, 119, and similar decisions of this court. We need not consider other cases cited. This action is ruled by those to which we have called attention.

II. Appellant insists that, in any event, he should have been allowed a prior lien for the three hundred dollar payment, which was to have been in cash, but which was never made. An inspection of the contract will disclose that the vendor did not intend to reserve any lien for this amount. He expressly gives the cost of the house priority to his claim for purchase money.

III. The conclusion we reach on the questions stated permits us to pass without consideration appellees’ objections to the record. The decree of the district court being in all respects correct, it is aeeiemeí).