Green v. Tenold
North Dakota Supreme Court
Appeal from District Court, Walsh county; Kneeshaw, J. Action by Bertram F. B. Green against Ole J. Tenold. Judgment for plaintiff, and defendant appeals. The defendant having no interest in the land, the title being in the United States, plaintiff can enforce his lien neither against the land nor building.
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Appeal from District Court, Walsh county; Kneeshaw, J. Action by Bertram F. B. Green against Ole J. Tenold. Judgment for plaintiff, and defendant appeals. The defendant having no interest in the land, the title being in the United States, plaintiff can enforce his lien neither against the land nor building. Gull River Lumber Co. v. Briggs, 9 N. D. 485, 84 N. W. 349. ' ' Plaintiff’s assignor tdok back a portion of the lumber sold under his contract and thereby violated its terms. He cannot, therefore, file a valid mechanic’s lien against the building partially completed. Section 4788, Rev.…
1DissentEngebud, J.
I dissent. In my opinion, the reasons assigned for the decision in Lumber Co. v. Briggs, 9 N. D. 485, 84 N. W. 349, were unsound and ought to be overruled. The only question presented in that case was the sufficiency of the complaint on demurrer. The complaint did not show that the defendant was rightfully in possession of the premises. Under the familiar rule that a pleading demurred to must be construed against the pleader, the presumption was that the defendant was a trespasser, and, as a mechanic’s lien cannot be acquired on a building erected by a trespasser, the demurrer was properly…
2Cases cited16 opinions
- Ombony v. . JonesNew York Court of Appeals · 1859
- State v. HillNebraska Supreme Court · 1896
- Pratt v. BrownWisconsin Supreme Court · 1854
- Wagar v. BriscoeMichigan Supreme Court · 1878
- Getchell v. AllenSupreme Court of Iowa · 1872
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