The Mutual Aid Building and Loan Co. v. Gashe et al. THE MUTUAL AID BUILDING AND LOAN COMPANY v. GASHE, ASSIGNEE, ET AL. Lien of material-man-Sale of land—Title with vendor till full payment—Improvements by vendee-Lien affects vendee onlyLegal transfer by vendor passes his right to grantee-Grantee may convey his right to mortgagee. 1. Where, upon a sale of land, for a price payable partly in hand, the balance in installments, the title remaining, in the vendor to be conveyed to the vendee upon full payment of the purchase price, the vendee is put into possession and proceeds to erect a building thereon, the lien of a material-man for material furnished for such building touches the interest of the vendee only. This interest is the value of the property to be conveyed, including any improvements placed thereon, less the unpaid purchase money. 2. In such case the vendor's right to be paid the balance of the purchase price, in case of a judicial sale of the property. is paramount to the lien of a material-man; and if he, for a valuable consideration, before a judicial sale of the property, conveys the legal title to another, the latter, thereby, becomes vested with all the interest and rights of his grantor, the original vendor, and by a mortgage, may convey to his mortgagee such interest and rights. 3. If, after such conveyance by the original vendor, and mortgage made by the grantee, the property is sold at judicial sale, the lien of the mortgagee upon the proceeds of the sale to the extent of the unpaid purchase money, and to that extent only, is superior to that of a material-man. 4. The circumstance that the third person to whom the title was conveyed and by whom the mortgage was executed, had no actual pecuniary interest in the transaction but was a mere conduit for passing the title and interest of the original,vendor to the mortgagee, is immaterial. (Decided April 27, 1897.) ERROR to the Circuit Court of Lucas county. This cause was begun in the probate court of Lucas county by a petition filed therein, by William A. Gashe, assignee of the The Ohio Lumber and The Mutual Aid Building and Loan Co. v. Gashe et al. Manufacturing Co., an insolvent corporation, to obtain an order to sell certain real estate of the corporation, and an adjustment of the liens thereon in favor of the certain secured creditors. The cause was appealed to the court of common pleas and there tried. The trial court stating separately its findings of fact and conclusions of law: "1. That said defendant, The Ohio Lumber and Manufacturing Company, at and prior to June 29, 1893, was duly incorporated and organized and was then existing as a corporation of the state of Ohio, formed for the purpose of manufacturing, selling and dealing in doors, sash, etc. That on said date it duly made a general assignment to said William A. Gashe for the benefit of its creditors. * * * "2. That at the time of making said assignment, the defendant, The Ohio Lumber and Manufacturing Company, was the owner of lots numbered 239, 240, 241, 242, 243, 244 and 245 in Ransom's addition to the city of Toledo, Lucas county, Ohio, together with the improvements thereon, and the privileges, and appurtenances thereto belonging, subject nevertheless, to the several liens and incumbrances hereinafter stated; that prior to, and at the date of said assignment, all of said lots, together with the buildings, manufactory, and other improvements thereon, were used by said defendant, The Ohio Lumber and Manufacturing Company, in prosecuting its said business as a single and entire premises: to which finding as to said lots having been used as a single and entire premises, the defendant, The Mutual Aid and Loan Company, duly excepted. "4. That at and prior to June 29, 1893, the defendant, The Shaw, Kendall & Company, was, The Mutual Aid Building and Loan Co. v. Gashe et al. and now is, a corporation duly organized and existing under, and by virtue of the laws of the state of Michigan; that there is due said defendant, from the defendant, The Ohio Lumber and Manufacturing Company, on account of materials furnished, to be used in the erection of said manufactory, as set forth in the first, second and third causes of action, in the cross-petition of said defendant, The Shaw, Kendall & Company, the sum of one thousand two hundred and fifty-one and 63-100 dollars ($1,251.63), with interest thereon from April 3, 1894, the first day of the present term of this court, and that to secure the same by a mechanic's lien upon said lots numbers 239, 240, 241, 242, 243, 244 and 245 in Ransom's addition to the city of Toledo, Lucas county, Ohio, and the said manufactory and other improvements upon said lots, said The Shaw, Kendall & Company, has fully complied with the requirements of the laws of Ohio, as in its cross-petition alleged, by reason whereof, said defendants has a valid lien upon said lots of land, and the improvements thereon to secure its said claim. "That said lien, concurrently with the lien here. inafter found in favor of said defendant, Henry P. Tobey, is entitled to priority against said property, and the proceeds thereof, next in order after the payment of the costs herein, and the lien of said taxes and assessments thereon, to which finding that said company has any lien whatever upon said lots or the proceeds thereof, the defendant, The Mutual Aid Building and Loan Company, duly excepted. "5. That there is due to the defendant, Henry P. Tobey, from the defendant, The Ohio Lumber and Manufacturing Company, on account of materials The Mutual Aid Building and Loan Co. v. Gashe et al. furnished, as set forth in the cross petition of said defendant, Henry P. Tobey, the sum of three hundred and six and 4-100 dollars ($306.04), with interest thereon from April 3, 1894, the first day of the present term of this court, and that to secure the same, a mechanic's lien was by said defendant duly taken upon said lots numbers 239, 240, 241, 242, 243, 244 and 245 in Ransom's addition to the city of Toledo, Lucas county, Ohio, by reason whereof said defendant acquired and has a lien upon said premises and the improvements thereon. "That said lien, concurrently with the lien hereinabove found in favor of said defendant, The Shaw, Kendall and Company, is entitled to priority against said property, and the proceeds thereof, next in order after the payment of the costs herein, and the lien of said taxes and assessments thereon; to which finding that said defendant, Henry P. Tobey, has any lien whatever upon said lots or the proceeds thereof, the defendant, The Mutual Aid Building and Loan Company, duly excepted. "6. That there is due to the defendant, Arbuckle, Ryan and Company, a copartnership doing business in the state of Ohio, from the defendant, The Ohio Lumber and Manufacturing Company, on account of engine, boiler, Duplex pump, with heater and stone for engine, and the fittings and connections belonging to said engine, boiler and pump, being the materials described, and furnished said The Ohio Lumbering and Manufacturing Company for its factory, as set forth in the cross-petition of said defendant, Arbuckle, Ryan and Company, the sum of one thousand sixty-eight and 81100 dollars ($1,068.81), with interest thereon from April 3, 1894, the first day of the present term of The Mutual Aid Building and Loan Co. v. Gashe et al. this court, and that to secure the same, mechanic's lien was by said defendant duly taken upon said lots numbers 239, 240, 241, 242, 243, 244 and 245 in Ransom's addition to the city of Toledo, Lucas county, Ohio, by reason whereof said defendant acquired, and has a lien upon said premises and the improvements thereon; that on May 27, 1893, said defendant, by written agreement with the defendant, The Mutual Aid Building and Loan Company, as to said defendant, waived the priority of its said lien as to said real estate, but not as to said boiler, engine, pump, heater and stone, and the fittings and connections thereof, which by the further terms of said agreement were not to become realty until paid for, to which finding that said Arbuckle, Ryan and Company have any mechanic's lien upon said premises. The Mutual Aid Building & Loan Company duly excepted. "And it appearing to the court, and the court finding that all of said property has been sold, and the proceeds thereof, now in the hands of said William A. Gashe, assignee as aforesaid, exclusive of the proceeds of the sale of said engine and boiler, with their fittings and connections, are sufficient in amount to fully satisfy said mechanic's liens hereinabove found in favor of the defendants, The Shaw, Kendall and Company, and Henry P. Tobey, respectively, the court finds that said defendant Arbuckle, Ryan and Company, to the extent of its said claim, has the first and best lien upon said engine and boiler, with their fittings and connection, and the proceeds arising from the sale thereof. To which finding the Mutual Aid Building & Loan Company duly excepted. 7. That prior to and upon May 17, 1893, the defendant, The Mutual Aid Building and Loan |