Joyce Lumber Co. v. Wick

De Graff, J.

Plaintiff, demands judgment against the defendant John Wick in the-sum of .$968.15, and prays that a mechanics’ lien.be established and enforced against a certain described parcel of real estate,.=and that a vendor’s lien held by the defendants F. L. Sutter and E. O. Carpenter against the real estate be decreed junior and inferior to the alleged lien of plaintiff thereon. A recital of the facts readily-marks the pathway of the decision to be made in this case.

The legal title to the real estate in question is in the appellees Sutter and Carpenter. The defendant John Wick, in consideration of $7,500, of which $500 was paid, purchased the property by a written contract, and forthwith took possession thereof. During his possession he made certain improvements *797 in the building located on the land. The claim of plaintiff, as contractor, is based on the value of the materials furnished by plaintiff for said improvement, • which consisted of hardwood flooring that was laid, and became a permanent part of the- structure then in .existence.

It appears from the record that the deféndants Sutter and Carpenter, under their contract with Wick, had a vendor’s lien to secure the balance of the purchase price. The vendor-defendants biad no actual or express agreement with the materialmen or with the vendee, Wick, respecting the making of this improvement, and the facts do not give rise to a, quasi contractual, obligation. Nor does the evidence disclose that the vendor ever acquiesced in or consented to the making of the improvement. No credit was extended in reliance upon anything said or done by the vendor. Mere knowledge on the part of the vendor that the vendee had made improvements on the building is not sufficient to create an implied promise on the part of the vendor to pay for the improvement.

Hunt Hdw. Co. v. Herzoff, 196 Iowa 175 . Nor does it create a lien on the interest of the vendee in favor of the materialman, superior to the , lien of the vendor.

Ellis v. Simpson, 199 Iowa 671 ;

Royal Lbr. Co. v. Hoelzner, 199 Iowa 24 . It may be conceded that the defendant Wick acquired an equitable title to the property, to which the .lien of the materialmen attached, since the vendee is an owner, within the purview of the statute. Section 10270, Code of 1924;

Veale Lbr. Co. v. Brown, 197 Iowa 240 .

The insuperable difficulty in the instant case, is that the vendee, Wick, although a nominal party, was never served-'with notice of this action.. Consequently, the claim declared upon cannot be established as against him or against any interest which the vendee may have in the real .estate. The building on the real estate was a part of the real estate, and a vendor’s lien attached. The improvement or betterment made by the vendee, under an alleged contract with plaintiff, did not constitute an original and independent structure, but became an integral part of the building then on the land, and could not be removed without damage to the realty. Under such facts, even though the vendee had been duly and legally noticed, a court would not *798 be justified in disturbing the premises and thereby causing a material injury to the security of prior lien holders.

The trial court ruled correctly, and the petition was properly dismissed. The decree entered is — Affirmed.

Faville, C. J., and Stevens and Vermilion, JJ., concur.