Keeling Collection Agency v. Penziner

SPENCE, J.

Plaintiff:, as assignee of certain lien claimants, brought this action to foreclose four mechanics’ liens. The trial court entered its judgment decreeing foreclosure of the liens and further decreeing that said liens were “prior to the deed of trust of defendant West American Finance Company”. The defendant West American Finance Company, the beneficiary, and defendants C. A. Gibson and R. T. Harper, the trustees under said deed of trust, appeal from the judgment.

The sole question on this appeal is that of priority as between the liens and the deed of trust. The deed of trust was recorded on September 1, 1927. The parties stipulated that it was executed on August 16, 1927, and was delivered between August 16 and August 19, 1927.

Appellants’ first contention is that three of the liens, to wit, those of J. El. Pieoni, Gunn, Carle & Co. and the Atlas Heating and Ventilating Company, were subsequent and subordinate to the deed of trust as they are based upon separate and independent contracts made with the owner subsequent to the date of the recording of the deed of trust. In our opinion this contention must be sustained. There was admittedly no general contract for the construction of the building and each of the lien claimants dealt directly with William L. Penziner, the owner of the property. It is conceded that the contracts of these three claimants were all made subsequent to September 1, 1927, and that said lien claimants thereafter performed the work and furnished ■the materials under said contracts. The deed of trust therefore had priority over the liens of the three claimants above mentioned.

(Powers

v.

Soule-Martin Lumber Co.,

209 Cal. 557 [289 Pac. 809];

McClain

v.

Hutton,

131 Cal. 132 [61 Pac. 273, 63 Pac. 182, 622] ;

E. K. Wood Lumber Co.

v.

Mulholland,

118 Cal. App. 475 [5 Pac. (2d) 669] ;

Consolidated Lumber Co.

v.

Bastien,