Floete Lumber Co. v. Hodges

McCO-Y, J.

This case was tried to the court without a jury upon an agreed statement of fact, and findings and judgment rendered in favor of plaintiff, from which the defendants Ha-rry and Jessie Hodges appeal. It appears that the defendant Harry Hodges is the owner of about 13 acres of land, in one parcel, and mostly situated within the corporate limits of the city of Platte, but which -parcel of land has never been subdivided into town lots or blocks; that said Harry Bodges entered into a written contract with Wiggins & Branson, contractors, to erect and construct a dwelling house upon said parcel of land, the said Wiggins & Branson agreeing to furnish all building materials to 'be used. Wiggins & Branson entered -into a contract with plaintiff *559 to furnish such materials, and lumber and material to the value of about $1,124 were furnished by plaintiff. Wiggins & Branson failing to pay for such materials, plaintiff filed a mechanic’s lien against said building and the said 13 acres of land upon which the same was situated. This suit was instituted to foreclose such mechanic’s lien. The defendants Harry and Jessie Hodges answered, alleging that said premises was a homestead. It appears that Harry Hodges was a married man, the head of a family, and that he and his wife, defendant Jessie Hodges, together with their minor children, for about six months prior to the entering into said building contract with Wiggins & Branson had resided in the basement, situated upon said land, upon which said dwelling house was afterwards constructed, and immediately upon the construction of said dwelling house occupied the same, and claimed the same and the whole of the said 13 acres as an exempt homestead. The court found as a conclusion of law that plaintiff was entitled to a mechanic’s lien upon said land, “except upon defendants’ homestead, not to exceed one acre of ground on which the dwelling house and improvements are situated,” and entered judgment accordingly, from which findings and judgment the defendants Harry and Jessie Hodges appeal.

[1] Plaintiff has also taken a cross-appeal from the same finding and judgment. We will first take up the appeal taken by plaintiff. It is the contention of plaintiff that at the time Harry Hodges entered into the contract with Wiggins & Branson the said 13 acres of land, or .any part thereof, was not the homestead of said Hodges; that there was not then situated upon said land at that time a dwelling house within the meaning of the homestead law. It appears that said contract was made in April, 1910, and that during the six months immediately prior thereto said defendants with their children had resided upon said land in the structure called a basement, upon which a dwelling house was afterwards constructed. It is the contention of plaintiff, appellant, that this basement did not constitute a dwelling house sufficient to establish a homestead right. We are of the opinion that this contention is not tenable. We are of the opinion that any structure which is sufficient for the debtor and 'his -family to actually reside in for six months, including the winter months, is sufficient for the pur *560 poses of establishing the homestead exemption right. The judgment and finding on plaintiff’s appeal are affirmed.

[2,3] Whether the Hodges’ homestead consisted of one or 13 acres, we are of the opinion that no part of said 13 acres is covered by plaintiff’s purported mechanic’s lien. If such 'homestead consists of 13 acres' -it is all exempt -from plaintiff’s lien. If it consists of only one acre on. which the house was erected, and on which the materials were used, then no building or materials were placed or furnished for use on any part of the land outside oif the homestead one acre, and it therefore necessarily follows- that a mechanic’s lien could not attach to any part of the land outside the homestead one acre, for the reason that a mechanic’s lien will not attach to land on which no buildings are constructed or no materials used. It is the use of materials and the construction of a building on any particular land that authorizes, under the statute, a mechanic’s lien against such land.

The judgment and finding appealed from by defendants Hodges are reversed and the cause remanded, with directions that judgment be entered in favor of these defendants as to the entire tract of 13 acres of land..