Sunset Lumber Co. v. Bachelder

SHAW, J.

Plaintiff began an action to foreclose a lien on a house and lot belonging to the defendant, T. F. Bachelder, for the price of materials furnished by it to Bachelder for use

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in the construction of said house, amounting to $776.67. James Rankin filed a cross-complaint to foreclose a mortgage for three thousand dollars on the premises. The court gave judgment for the foreclosure of the lien and the mortgage for the full amount of each, but declared that the lien of plaintiff was prior and superior to that of Rankin’s mortgage. Raukin appeals from that part of the judgment which declares that the plaintiff’s lien is paramount to his own and directs its payment in preference to his own out of the proceeds of the foreclosure sale.

Bachelder began the erection of the house in August, 1908. He directed the work himself and did not let it out by contract. On December 31, 1908, there was a cessation of the work on the building, and on the next day, January 1, 1909, Bachelder and his family moved into it and have ever since resided in it. The plaintiff furnished material prior to December 31, 1908, amounting to $876.67, of which one hundred dollars was paid. Afterward in April, 1909, plaintiff delivered other lumber for use in the house at $93.70, which was paid in cash, and in July, 1909, additional lumber to the amount of $124.90, which also was paid in cash at the time.

The complaint alleged that the building was fully completed on December 11, 1909, that its claim of lien was filed for record on March 11, 1910, exactly ninety days thereafter, and that no notice of completion was ever filed for record. The mortgage to Rankin was executed by Bachelder on March 9, 1909, and was duly recorded on March 12, 1909. The answer of Rankin denies that the building was not completed until December 11, 1909, and alleges that it was fully completed on December 31, 1908, and that it was then and ever since has been occupied and used by Bachelder and his wife; that there was at that time a cessation of labor on the building, which continued for more than thirty days thereafter and for more than one hundred and twenty days prior to the time of the filing of plaintiff’s claim of lien on March 11, 1910.

The findings declare that “there was no cessation of labor upon said building for the period of thirty consecutive days between the first day of January, 1909, and the eleventh day of December, 1909.” This finding is contrary to the undisputed evidence in the case. Bachelder and his son testified that they lived in the house from and after January 1, 1909,