COURTNEY t1. PRESIDENT, ETC., OF INSURANCE CO.
309,
upon appeal, will enter upon a.£o11 hearing of the questions upon which, the ultimate rights of the op:p,osing parties may be dependent. If it ap. the title to the land or property is in pears from tbe showing made dispute, and that the complainant is in good faith seeking to settle such dispute, that is as far as it is necessary for the court to inquire, so far 8S, that particulll.r point is involved, when asked to issue an injunction one issued in the present proceeding; and therefore we do such ali! not enter upon a consideration of the questions which were so fully presented In argument of couOflel,but which more properly belong to the · final hearing of the cause uplin the merits. Finding no error in, the Ql;der appealed from, the appeal is dismissed at cost ofllppellan.t.
CJoURTNEY
al. .t1. AMERICA
m.,
OJ'
.,
i;
."'.
COURT >' ' , "., , ' ",.' 1,I,; ,: ;Qua QiU,j;o, decree Of eale w8ll:;$ndeJ:"ed,in ;the:oi1'lll1it, the crelil:ttou ,oftp.e of I'PP!la18. , Aftj1rtb,e of that, court '8 decree WIlS entered Oil 'a c1'088-bi11 setting tip a mecl:1anlc's 'Uen 'On the premo' . ise,.lfeld", Appeal-to tl1tl olrcuitCOtInQf appeals :frolD'thlt lattfb . deere!!, though not froID, the . . , , ' " t. s.om-A'MouNT INCoiq'-rli:ovaBsl'.·· :. . '.' ". ; ; , When the circuit cCiiUrt obt'ltiJiil,jurisdiotion of a suit to foreolose a :iil-; by; of dive,se,#,tizenship" it 46f, terini,ne the'p'tlority 'of all lieils upon .the 'premf8es set up bY' eross-blll, regll:i'dl1l81 .of the am'ouift8claim6dj: and, 81 the jarisdlotion of the circuit court of ;appeala is· not to an, dt Wa" entertai"'"al/. appeal from a <1.eeree of court on such a cros,s-bUl.refl1sinil' to recognize a lien for leIS than $2,000; ,. , . 1.
.8.
COIl1"(>, :et. Neb. o. 54, §, 8. Pllov!lles that on:(l.lil/.g the ie's lien the same 11:8 a Ulln "foli' two year8 fr()m tbe cornmeticeJPeut()t" the· labor or ·the 'furlIlshmg'suchmaterials;" Held, tbat"the word "COmD1en'c&' .ql,ll/-lill.e8b,oth "labor'tl!ond and the dates from the of tbe fl.rst dehvery· , Asaga.iDst.tbe owner of the bUH.ding ,8sweI lasarnortgag,eetbereof W.horecelv,e,d, ',' hi8 mortgage before tbeend Of the four, month8 allQwed for filing the account,the material-man'8 lien attaches date of the fir8t delivery, altbough the account and afIldavit do not.',shriwsuch date, and only contain tbe date when thfi. became due, which W,81 after tile last dellv,ery of ;m,ar-eriaL ' , ,
... BAMIIl-ACQOtrNT AND AFFIDA'nT;
Appeal frotn the Circuit C8tirt of the United State!! fOf the District 61. 'Reversed.' , ' '. ' , ' " !,; CarrollS. J!mitgomery, Eugene MontgO'TMry,and Mdnt{}.lrmery, charlton &:. Hall, forappellnntS. , ,'" " .', " .' · ,., " " : Jdh1l0. Wharton and William Baird, for appelleeB. ..," TBefore OALD'YELL" Circuit Judge, and 'S'HIR,AS and, '1'RAYicR, '1)jstrict . ...udges. " '" , '., ,St#iIJ,District,Jtidge.Orithe 25,th 1889.< :pllees"filed a'1)illiri' equity in the circuit court 'forthedlstdettil"
, ,'FEDERAL REPOR;O&R:,vol.
49.
braska., for the purpose offorecloiing ..:riaortgage executed by Minnie L.: and Fremont N.iJaynes upon certain realty situated in the city of Omaha,< N(l'b., and giventOsectrre the paymentofthe note described in the mottgage, the note'alid mortgage being dated October 9, '1888. To this billrin addition to mortgagors, there were made defendants a number of parties holding liens upon the realty, 'including the firm of CdurlIiey &; McBride. The latter' the' bill, and also in due in which it was averred that on the 12th day of September', 1888, aeontraet was ente'red into between said firm and Minnie L. Jaynes, who was the owner of the realty subsequently gaged, 1Vneoohy the firm to· furnish· certain brick to be used in the erection of a building upon the realtYj that in pursuance ofsuch con-' tract the said finn, beginning on the 12th day of September, 1888, livered 284,000 brick between that date and the 21st of November following, which were used in the construction of a building upon the premiselLdescribed in the plortgagej, that on th,e 19th day of March, said'fitni filedlntheMic8 of the register of deeds in and for Douglas count)·, Neb., a claim 'fOr Ii mechanic's lien in accordance with the of the state of .Nebraska, t,l1e sum claimed as a lien being'$90L25;"thatthis'8tuu'and interest remained 'due and unpaid; and that the lien thus prior and to the lien of the the cross-bill, the mortgagees admitted all the that inwliichpriority of 'Vas claimed. Upon the 'hearing. theoircuit oourt found' and adjudged' that the mortgage was a valid lien upon the realty, arid adjudged thl:ttthere .was due complainants, th.el'eontbesumof817,ap3.25; that there was due the firm of McBride the a ,upon the realty;.but,thatthesame datedfr01D,Noveulber 26, valid 1'888,llnd pf The premises were' sold bya master, and the amount realizedwaanot sufficient to pay all the)iens, , and liSll,oon§eg",ence Courtney' & McBride have up<mtheir claim. "When the decree establishing the order andJ'priority ofthe several Hennvt:tli entered, it ,WIlS duly excep;ted to, and the said Courtney & McBride forthwith perfeCted their appeal tQthis cO:UJ't, assignin,g, as the prin.cipalerror relied upon, the holding thattheliei)ofappella,n,t'$ dated only from November 26, 1888, and Wll.S therefQre inferi'of to the liE'n of the mortgage. In this court the appellee filed a motion to dismiss the appeal for want Of jurisdiction, which the main ,case. In Ilupportof the 'it'is suggested that, as' the6rst argu'ment of the, decree of the court ordenng 'a sale' of the premISes was entered, on tbe Wt,h clay of June. 1890, before the adopti911ofthe act,clCeating this CQu,rt,'jurisdiction to pot eXiSt;. trow that decree, thepOSIboiI would 'be well taken, but such III not the The order or decree appealed from is based upon the filed by ap,1891, ,at ,:which time tpe act pellantll, and it was rendered, J.ulX ci'ili\tibg tt1is' tp an apPelil:]:ieyon4,
lien
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it
COURTNEY
iTO: ,0'11' nt8-dBANCE
00.
811
Equally upon the fact .that the, ·than $2,000" the being>that no appeal or" writ, of error will lie to this eourt unlEl88 the mattm-in;dispute' exceeds $2;000; , The argument is that,as the statute of creqnirea to be involved before the circuit court can .tak.ejurisdiction originally of a cause, it must be held that thesame;llmitlttfon is applicable to the jUrlsdie; Hon dfthis court. Nosuchlfmitattpri is 'found' 'itl'the. act this Court,., and defining· the' tbereof.... Jt may be said, ,gao; court,d to,provlde OIv,U'Cl1u,sesan appeal to '!'rU court, the 'court ,and the circmt courts of appetd, 'accordl'ng to thenatnre' oftbequestlons ¥ty?lveq·. '-r.her,efore, if, t.i.on. . df.
of March 3,..1891,
·.·.t.he l8SUe8. .. r.ese.D.ted.· by...t.h.e.·.. tft.&8.8-.' pill. a.. 'd.·. 'flI.. 6... answ.e.r ther.etq,. .. .... . . . .. . can.lje ll('. ra,ise4 Jurli@1Ctid,n '0,f J?. b.
plll1Da'(lt' laws oftbe ,state
the /I.';
9le and:.or ith,e.propeffl'
of, Nebiasltk,'
bei6g'1argelybi"ex,:6clis, o( 82;000,
jtirisdiction'of1tlXe·pames·w the pitd
tbe mortgagea'property, the jurisl. dlctioti'o\Terthesamenot:being depetiaent upOOi'the citiZenship'ot parties theret(),':t1or upontM'almount iftdispute thei'ein, but!beiiltf)lJll8tainedby:tlie· the original pr()ceedingl\ for the"fol'elllosure of ·the mortgage..· .The' motion'lto dismiss the' appeal :is therefore overruled, and >we pass to .the· considera.tion of the question oUhe priority of ;the mortgage ov:eJjthe lien of the appellants. Tb.ts will! require, in the.·1irst instance; an examination of the. sec.tbe N,ebrasJciL statute creating liens in favor of parties fur;to be :'Q,sed in the· erection of b\lUdings. Section. 1,3, Co 54,CQIIlP.·St. P.. .J$3, follows: I , "SectIOQ'],. ,:Any persoQwhosball. perform any laborfor"or forDish aily material orQ1achinery for, or rem\>val.bf or \Y.lth, theo.wner, tbereof prh18agents., B lien to securil the paymant of the .satn'e 'such house, manufactory. l)tiflding; drJapp·urtenance. and the tOt 'of land:ripon1tbich' the aatneilhli.ll "i·, :.1:.;;' ';1""": '"
lishiiigany'liens
ftled
the' prbooedsof l
bY aJIY one l)r'more c;fthe defendants
., It bM.the,r1ght toentel'tainaIt
rpill,
by
",.
8.!
penon: entitled ito alien uilefer: th1scliapter; shall Dlakeaos(llo qf W>o.r ··I:I;ll"'hineQT.'OJ'
.'
RE:P9R'rll)R ,vol. .' '. '
4
,j
... .
. .. I.
making,oatb thereto shall. such labor 'or skill. or furnishing such m,ateri81 or machinery, file'the'lame in the office' of the register of deoosp ., ,.:" which account, so made 'and tiled. shall be recorded. .. .. .. and ElhalJ,fJ,'Om the commElncement of such labor or ,the furnishing such maJears after the. tiling ot such liell operate as a.. lien. .. .. · ..
wttbhl toubpontbs of thethne of
the case maybe, and
'l'IlEl on
in',
i.n thec8$e shows tbllottpe materials furnished by appel; dates. of l;3eptember lla,ndNovember the ,claim for thcflien was.file<;l in the register:s office J9th day, of March, 1889, and the claIm of the appellee IS that. o('l}late!ials tgemllJ does, not t+t:taCIl until the coman4 tperefqre ip. this case the lien of ap,the tIlEl is that such g?f.S.U. cq, . poth phrases a,nd 10 the case
so o.r.,.. th. . ,fUPPSJi.l,llg ',.8U.l; ..:. rmt' . .. . flS eW. " s.' fortw..}.p, ,y: ..
of lien, . It- :18;. Jtot quest19neq :ro.r the and W;e-,Ii:Cpl.Ot. beheve thp,t Itwas the. mtent to change the ·.. The: :was. passed foJ,' ':wIlo. shquldp'ef(orin labor or for O(PHVdings, alld 'it. would Iargely de.-- . of th.e if the coostructfon urged on If the lien does tPe'eIltire coptrac(ol delivery is comthe power of .the (nyper ,9f the building to tIle lien by a. just before is rellcterit valueless py gjying mortgages. Qr o'Ul,er li;cmsthe;reon valUEl Qf t4e realty use of materials furnillbed. but material-man, by a I b8s become entitled to a .lien.' The furnishing underacontraet for use in,the erection of a building is .. with the first delivery, and ending with the last, of the-'paltncular articles' oontracted to be furIiish.ed1bnt the act oHurday to the' last, inclusive, and therefore, under sectien',g 'Of the Nebl'aska statute" the party furnishing the mate,;. rials, to become entitled 'to ,11 lien,IIiust"within four months of the time. Qf futmsbing,said'materials,-that is,!within' fourmontbsaitlerthe completionof the, act of furnishing the ma:terials,-file the' necessary account. wheu lien dates from of th 8 8,ot the to bl! b,. ih' constru,c;tJon placed upon th, statute by the supreme court of Nebraska in Analey v. Pasahro, 22 Neb. 662, 35 N. !Wi· Rep,; 885, 'And the decision of that court upon the question is, ofcour13ejlJonelusive even though we might be, i
0t
COURTNEY.,,; ,PRESID11:NT,
OF: INSURANCE CO.
313
inclined to a different view of the statute, which, however, as alread.y stated, we do not hold,and our conclusion is that tbe lien for materials furnished under the provisions of the statute of Nebraska dates from the time when the delivery thereof was commenced. A more doubtful question arises upon the form of tbe account filed by appellants in the register's office, it being by the appellee that upon its face it claims a lien only from November· 26, 1888, and that the appellants cannot be permitted to assert that the lien attached at an earlier day; and it was upon this view, as we understand it, that the circuit court based the conclusion that the lien of appellants was inferior to that of the appellee. The affidavit filed in the register's office states the facts in regard to the fttrnisbing the brick to be used in the erectili>Q of the building, and then continues as follows: " A. statement is hereto attached marked ·Exhibit B,' and made apart hereof, sllowing the number of brick furnished under said contract, andtbe payments thereon, and the amount due said Coul'tney& McBride from the said M. L. Jaynes, which amount. after allowing all paYments and just its thereon, is the full sum of$901.25. The said Courtney& McBridedeslre to secUl'e, !lond hereby claim. a lien upon the above-described real estate, buildings, and the appurtenances thereto belonging, for the said sum of $\J01.25, with intertst thereon at the rate of 7 pel' cent. annum from the 26th darlof November, 1888, pursuant to the statutes of the 8tateof Nebraska in such made!lond provided. " Tbestatement attached to the affidavit is as follows: "OMAHA, NEB., Nov. 26, 1888. "Mrs. M. L. Jaynes; Omaha, Neb., to Courtney & McBride,»r., Brick ManUfacturer; Yard. 16th street, North of Fair Grounds. ' 'x9V;26th, 285,000, $7.00, · . · $1,995 00 . By cash, .. O!> Extra' haulin.g, perT. J. Quick. By cash, $250, · "COUltTNEY &
$:1,145"60 ,:6 25 $1,151 26 00
MoBRIDE." . . The statement filed for the purpose of establishing. a lien does I?-ot'state from what date the lien is claimed, and the account attached does not -state when the delivery of the brick was begun. Tbere is, however, no dispute as to the fact that the first delivery under the oontractwas on ,September 12th. This is ad,mitted in the pleadings. So' faql.s the owner of the property is concerned, it cannot be claimed .she was mjsled in tbis matter, or that she would not know when the Hen would attach. She knew the date of the contract and the day wben the appellants commenced to deliver the brick contracted for, and, as the statute gives a lien from that date, she could not be in doubt as to the purpose of appellants in making claim for a lien for the balance due thc;n, ""pursuant to the statutes of the state of Nebraska in such cases made
--$90125
814
,"
I'EDERAL REPORTER,
vol. 49.
anti provided." We, thin.k, ,therefore t : the statement was 8ufiicif'Dt, 'as between ,the appellaats,a:nd! the owner, of the propel'ty:,.ro create,a lien from the date of the first delivery of brick under the contract. The .fact that the bill attached to: the affidavit, as above quoted, bears date No-vember 26th, cannot·be ,held to be a statement that the lien is claimed fromthilt date. That date is given ih the bill as a statement ofthe time when'the payment became due, and could not have misled the property , owner: in any way Does the case stand in any different position as between the mortgagee aridlhidienholders? The record shows that the mortgage. was executed October9 t 1888, and wlt8asaigned to the appellee March 13, 1889; therefO!l'e,it cannot be claimed that either the original mortgagee. or the appellee was in any way misled by the form of the statement filed for the PUrpoS8!.ofsecuring alien, because it was not so filed unW after the ex'ecutionand aSFlignment 'of the mortgage. Knowing the fact that the 'l110rtgagot -was ,erecting a building upon. premises, tHe, mortgagee and appellee', t*ke notice that parties furnishing the mate,rials .erectl0n of.tlje,building were entitled, under the laws of Nebraska, to 'establish a for the SUmS them, by taking the steps provided in the statute within four maqths after the furnishing the materialwa.saotnpleted','and they therefore took the mortgage with notice of the rights of the appellants. Thus it is said by the supreme court of Nebraska in Doolittle v.Plenz, 16 Neb. 156, 20 N. W. Rep. 116: ."A p$rt.Y pUJ'Chasing a building within four months from the time of its repair1lrJ1ave been made.. upon it, takes it subject to any f0J:erecting, pr repairillgthe same. The law is legitimate claim notice to everyone that such lien may be filed, and it behooves the party purchasing the' premises to see that all such claims ate satislied or secured, and no person can be a bona fl,de purchaser, as against such liens, by simply taking from the owner of the fee." · , If, therefore, the appellants have established a lien upon the premises, which, as between them and the owner of the property, dates from September'12, 1888,and if the mortgage was executed and assigned at a time when' the law charged the parties taking the same with notice of the right of appellants to claim a lien from that date, it follows that the rights of!t4e superior, and not inferior, to the lien of the mortgage. . . '. .'. from is therefore reversed, and the cause is remanded to the Circuit cdhrt, with instructions to enter a decree award·ing the appellants over that created' by the mortgage, anti dlr.ectmgpayrnent oftheanlOunt due the appellants from ·the the sale before payment to the mortgagee, and also awarding costs..' 'W'lI-ppellants, including the costs of this appeal.' . · . :.",' . , , .
ST. PAUL, S. & 'T,'l]j'.RY: CO.1i.SAGE.
31.5
Sr.
PAUL, QT
S.& T. F. Ry.
11. SAGE.
(Circutt Court
.4ppeatB, E(ghth CircwU. Februaty 1, 1899.)
The fact that under the bill, instead of a reoovery of the lands, a money judgment oould be had for the proceeds of their sale, does not a:l!ect the question of lachesJ it appearing that sUl.'h proceeds havEI,been used in payiXlg defendant's debts, ana that a judgment for the amount therebf would greatly depreciate the value of defendant's bonds and stock-shares, many of which have doubtless passed into the hands of innocent holders. 44 Fed. :Rep. 817, and 82 Fed. Rep. reversed.
Appeal from Circuit Court of the United States for the District of Minnesota. Bill originally brought by the Hastings & Dakota Railway Company against the Stillwater & Taylor's Falls Railway Company to recover certain lands, or to have an accounting for the money realized therefrom. Russell Sage, having purchased all the title and interest of complainant since the commencement of the suit, was substituted as plaintiff. Decree for complainant, (32 Fed. Rep. 821,) which was affirmed on rehearing, (44,Fed. Rep. 817.) Defendant appeals. Reversed. Thomas Wilson and Lloyd W. Bower8, for appellant. John M. Gilman, Frank B. Kellogg, 01.Mn Morris, and Briuon £0 (}ray, for appellee. Before CALDWELL, Circuit Judge, and SRmAsand TRAYER, District Judges. SRmAS, District Judge. By an act of congress, approYed March 3, 1857,' there was granted to the then territory of Minnesota, for the purpose of aiding in the construction ora line oftailway from Stillwater, by way of St. Paul and St. Anthony, to a point between the foot of Big Btouelake and the mouth of Sioux Wood river, with a branch by way of St; Cloud and Crow Wing to the Red River of the North, every