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MANISTIQUE LUMBERING Co. v. Francis H. GRISWOLD. Error to Schoolcraft. (Steere, J.) Nov. 13.—Jan. 6. REPLEVIN. Defendant brings error. Reversed. J. F. Carey and F. 0. Clark for appellant. Charles R. Brown for appellec. CHAMPLIN, J. This case only differs from the case of the same plaintiff against John L. Witter, ante, p. 625, in the fact that the Chicago Lumbering Company had no office in the township of Hiawatha, which, under the facts, we think is immaterial. In all other respects the records in the two cases are the same, and the decision in that case necessarily rules this. For the reasons stated in the opinion in that case, the judgment of the circuit court is Reversed, and a new trial ordered. The other Justices concurred.

GE. D. Sisson, Francis LillEY, HARVEY C. TAFT AND JNO. VERCADE v. Edwin R. HOLCOME AND WM. S. MOORE.

Builder's lien. A builder's lien will not attach to any interest in real estate whiclo

defendant did not have when materials began to be furnished (How. Stat. S 8377); nor will filing notice of the lien operate retrospectively : the lion will not, as against bona fide purchasers, attach to property that has been transferred to them before the filing of notice.

Appeal from Kent. (Montgomery, J.) Nov. 18.-Jan. 6. Bill to enforce lien. Complainants appeal. Affirmed.

Birney Iloyt for complainants. A builder's lien may be good where title is obtained after the building began : Mountain City Market House v. Kearns 103 Penn. St. 403; Bell

v. Cooper 26 Miss. 650; Rollin v. Cross 45 N. Y. 766; the lien relates back to delivery of material if notice of the intent to claim it was filed: Dunklee v. Crane 103 Mass. 470 ; Gale v. Blaikie 126 Mass. 274 ; Morse v, Dole 73 Me. 351; Goble v. Gale 7 Blackf. 218; Chadbourn v. Williams 71 N. C. 444; unless otherwise provided by statute : Cotton v. Holden 1 McArthur 463; Ritchey v. Risley 3 Or. 18+; In re Floyt 3 Biss. 436; purchasers subsequent to the begin. ning of building must take notice of the rights of those who furnish materials : Reading v. Hopson 90 Penn. St. 497; Miller v. Kauffman 14 Md. 173; Mellor v. Valentine 3 Col. 258.

Stuart & Sweet for defendant Moore.

CAMPBELL, C. J. This was a proceeding under the lien law, to establish a lien on a lot in Grand Rapids for lumber furnished defendant Holcomb, to be used in a house to be built on that lot. The building contract was made with a firm known as Bennett, Osburn & Co., and Holcomb agreed with them to furnish the lumber to be used by them The lot was owned by Edwin F. Sweet and between them there was a mere verbal understanding which never took written shape until December 27, 1883, when Sweet conveyed to Holcomb and took back a purchase-money mortgage for $1800, which included $1150 which he was to advance to help pay for the building. These papers were to be retained by Sweet to secure the completion of the work. No money was paid to Sweet, the whole purchase money being left on credit. In January, 1884, Holcomb desired to sell, and Sweet made a sale for him to defendant Moore, for $1000 over and above the mortgage, for which sum tire property was to be taken with the building completed. To secure this, $3:38.50 was retained until adjustment, and on April 4, 1881, the whole balances were adjusted, and the business closed up. On the same day the deeds and mortgage were recorded. After the money had all been paid, and papers delivered, Sweet was first informed that complainants set up a claim for lumber furnished. On the same day complainants filed their notice of claim of lien, but this was done after the other papers were recorded.

Upon all the facts it is very doubtful whether complainants would have had any claim had Holcomb made no sale. Their contract is shown to have been made on or before December 1, 1883, and lumber was then furnished, and we are not satisfied that it was made upon any reliance but IIolcomb's personal obligation. No reference was made to the lot by any description which could identify it. But at that time Holcomb had no right, either at law or in equity, to the land. There was, at most, a vague verbal understanding which at that time was not partly performed to any such extent as would create an equitable title. It was not until December 27 that anything definite existed, and at that time the larger part of the lumber had been furnished. The statute only gives a lien upon such interest as the owner had when materials began to be furnished. How. Stat. $ 8377.

But there is a more serious difficulty. By section 8378 it is provided that no lien shall attach unless the claimant shall file a written notice of the claim under his contract, which may be for what is to be furnished as well as what is already furnished ; and a copy of this notice is to be served on the parties interested in the land. The filing and service (it is provided by $ 8379) shall not bind the landowners or parties interested in the land beyond the sum then due or to become due thereafter; and of such amounts notice and proofs must be given, as required by $ 8380. And it is declared by $ 8379 that the indexing and filing of the notice of intention to claim a lien “shall have the same effect as to notice as the recording of a mortgage.”

It is impossible under this statute to hold that the Legislature meant to so far deviate from the long-settled policy of the laws as to allow the title to real estate to be hampered and clouded by claims of which no one has means of knowi. cdge. The fair meaning of $ 8378 is that until the proper notice is filed no lien shall attach to the land. Otherwise it would be open to the unreasonable construction that a lien inight exist in the mere intention of the contractor, although remaining dormant and unheard of, and that on the last day allowed for filing the notice it could be filed and given retro

active effect in fraud of all intermediate claimants. This is not a natural construction. It is definitely destroyed by the clause declaring the effect of the record. It is thereby put on the same footing as the recording of a mortgage, and under the recording laws, such a record could not affect previously vested rights obtained in good faith without notice of it.

Moore was clearly shown to be a bona fide purchaser, withiout notice, of the fee-simple of the land, and the lien as to hiin is void. The court below took this view of the matter and rightly dismissed the proceedings with costs.

The decree must be affirmed, with costs of this Court.

The other Justices concurred.

ELIZABETH NOBLE V. JAMES Fairs, Geo. H. WHITE AND 58 641

Chas. B. Judd,

Suggestion of claim for mesne profits -- Value.

1. The trial judge's finding of mesne profits, upon the suggestion of a

claim therefor, is conclusive as to amount, if not excepted to, in a

review on case made. 2. The suggestion of a claim for mesne profits (How. Stat. S 7831) is in

effect a declaration in assumpsit for use and occupation, and may not only be made before defendant has received any payment but is

not limited to the payment received. 3. The amount of rent paid may be shown as bearing upon the value of

the use and occupation. 4. The suggestion of a claim for mcsne profits is filed in a case already

in court (How. Stat. & 7830) and the record in that case sufficiently shows the claimant's right to the premises, and identifies the judgment in his favor.

Casc inade from Kent. (Montgomery, J.) November 18, 1885.—January 6, 1886.

Claim for mesne profits. Clainant had judgment. Affirmed.

John E. More for claimant. The Supreme Court has nothing to review on case made if the record docs not show what errors are relied on: McMillan v. Cheese Factory 23 Mich. 544; Wilkinson v. Earl 39 Mich. 626; and if a stateinent of them was not filed and served as required by Circuit Court Rulo 84: Tuxbury v. French 39 Mich. 190.

Benj. C. Girdler and Jas. A. Rogers for appellant.

SHERWOOD, J. On the 28th of August, 1883, the plaintiff bronglat ejectinent against the defendants to recover lot 6 in Boynton & Judd's Lake addition to the city of Grand Rapids, and on January 31, 1984, judgment was rendered in her favor. On the 18th of June thereafter, the plaintiff filed in the case, in pursuance of How. Stat. $ 7829, a suggestion of claim against defendant Charles B. Judd, for mesne profits of the lot in question for the time he occupied it or controlled possession thereof. The issue joined on this snggestion was tried before Hon. Robert M. Montgomery, presiding in Kent circuit, without a jury; and on the 24th day of April, 1985, he rendered a judgment in favor of the plaintiff and against the defendant Judd for ten dollars damages, and costs of the suit. This judgment we are asked to reverse.

The proceedings at the circuit are now before us for review upon a case made containing, besides the record proper, the evidence taken upon the trial and the findings of the circuit judge thereon. From the findings of fact it appears : (1) Plaintiff was the owner of the lot in question from May 8, 1892, up to the time her suggestion was filed. (2) From May 8, 1882, until September 20, 1883, defendant Judd occupied the lot by his tenant, James Fairs, and enjoyed the mesno profits thereof during that time. (3) The value of said inesne profits for the time stated was ten dollars. (4) Judd did not receive any part of the sum due him from Fairs for the rent of the lot until after plaintiff filed her suggestion of claim for mesne profits. From these findings, the circuit judge's conclusion of law was that plaintiff was entitled to recover from Judd the said sum of ten dollars

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