West v. Badger Lumber Co.

1. Fraud — Rescission of Contract — Mechanics' Lien■ — Rights of Lien Holders. An owner of real estate, who was induced by fraud to convey the title thereto to another under a contract contemplating the construction of buildings thereon, cannot, in an action brought by him to set aside the conveyance and discharge the property from all liens, defeat the claims of persons who, in good faith, and relying on the apparent title of the fraudulent purchaser, have furnished materials and performed labor in the construction of the buildings contemplated, and complied with the statutory requirements in establishing their liens. But personal judgments against the plaintiff for the amounts due such lien-holders are erroneous. The property only is liable for their payment. 2. Attorney’s Fees — Allowance. Section 638 of the code of civil procedure, which authorizes the recovery of attorney’s fees in an action brought by an artisan or day laborer to foreclose a mechanic’s lien, applies only to the trial court, and does not authorize an allowance for attorney’s fees in this court.

Error from Wyandotte Court of Common Pleas. The plaintiff in error brought suit in the court of common pleas of Wyandotte county against John Parker, John C. Snyder, L. D. Robertson, the Commercial Bank of Kansas City, Mo., and a number of other persons, and in his petition alleged that the defendants Snyder and Robertson were partners in the real-estate business in Kansas City, Mo., and were indebted to defendants F. M. Darnall and the Commercial Bank, and that to secure and pay them these parties entered into a conspiracy to defraud plaintiff out of 10 lots in Argentine, Kan.; that the defendant Parker was employed as a “straw man,’' for the stipulated sum of $25, to contract with the plaintiff for the purchase of the property for $3,500 — $150 cash on each lot — the purchaser to be permitted to place a first mortgage on each lot for $600, to be used in paying for the erection of a four-roomed, house on each lot, and the balance of $200 a lot, with 8 per cent, interest, to be secured by second mortgages payable in one and two years — the purchaser to give a satisfactory bond in the sum of $6,000 for the erection and payment for said four-roomed houses ; that the plaintiff deeded the property to said Parker in pursuance of this agreement, and Parker executed first mortgages and second mortgages of $200 on each lot, and gave the $6,000 bond, with Snyder and Robertson as sureties, but that they were worthless ; that, in lieu of the cash payment of $1,500, the plaintiff was given three of said $600 mortgages as security therefor ; that the remaining seven $600 mortgages were transferred to the defendant the Commercial Bank of Kansas City ; that the houses were never paid for, and were never intended to be paid for; that the plaintiff had tendered back to John Parker the three $600 mortgages and the 10 $200 mortgages, and demanded the reconveyance of the property, and also facts showing that all of these transactions were fraudulent as between the parties named ; and further alleged that the other defendants claimed to have mechanics’ liens on the property, but in fact had none. The Commercirl Bank answered, setting up its seven $600 mortgages, alleging that it was the bona fide holder thereof as security for a loan of $4,000, and asking judgment declaring them a first lien on the lots. The Badger Lumber Company and numerous other defendants filed answers setting up mechanics’ liens on the property for labor performed and materials furnished under contracts made by Snyder and Robertson. The case was tried with a jury, Hon. J. B. Scroggs, judge pro tern., presiding, and answers were returned to numerous special questions submitted by the various parties to the case. These findings sustain the charge of fraud as against the defendants Parker, Snyder, Robertson, and the Commercial Bank. The court thereupon rendered a judgment canceling the deed to Parker, and the mortgages executed by him, but rendered judgments in favor of the parties made defendants in error in this court, sustaining their claims to mechanics’ liens on the property, and providing for their enforcement. To these judgments the plaintiff excepted, and asks a reversal thereof by this court. The opinion herein was filed January 11, 1896.