Cited by

53 Minn. 388, 397-98 , 55 N.W.

Wentworth v. Tubbs, 53 Minn. 388, 395 , 55 N.W.

Wentworth v. Tubbs, 53 Minn. 388 , 55 N.W.

The statute is intended to provide fair notice to mortgagees of improvements “on the ground.” Wentworth v. Tubbs, 53 Minn. 388

In the case of Wentworth v. Tubbs, 53 Minn. 388 , *117 (1893), in an opinion written by Mr. Justice Mitchell, the theory that a bona fide mortgagee should have precedence over a lien claimant where there was no visible improvement on the ground was first stated and may well have led to the adoption of the revision of the statute which now so provides.

The statement of Mr. Justice Mitchell of this court with respect to architect’s services contained in Wentworth v. Tubbs, 53 Minn. 388, 395 , , is appropriate with respect both to the architect’s services and the survey herein: “* * * [I]t would be very unjust if the land could be afterwards swallowed up by mechanics’ liens for work which had not been commenced on the ground, and of which consequently one who might buy the property

With respect to both architectural services and surveys, we think the following statement of Mr. Justice Mitchell, writing for the court in the case of Wentworth v. Tubbs, 53 Minn. 388, 395 , , is appropriate: “* * * [I]t would be very unjust if the land could be afterwards swallowed up by mechanics’ liens for work which had not been commenced on the ground, and of which consequently one who might buy the property or take a mortgage upon it had no notice or means of knowledge when

Emmert v. Thompson, 49 Minn. 386 , , 32 A. S. R. 566; Wentworth v. Tubbs, 53 Minn. 388 , ; Elliott v. Tainter, 88 Minn. 377 , ; 41 C. J. 582.

(2 ed. & Supp.) § 9038; 60 C. J. § 28, pp. 719, 720; Wentworth v. Tubbs, 53 Minn. 388, 397 , .

In Wentworth v. Tubbs, 53 Minn. 388 , , and Heisler v. C. Aultman & Co. 56 Minn. 454 , , 45 A. S. R. 486, it was held that subrogation applies only where the payment operates as a purchase or equitable assignment, and not as an extinguishment of the lien paid, and such is the intention of the parties.

Probstfield v. Czizek, 37 Minn. 420 , ; Wentworth v. Tubbs, 53 Minn. 388 , ; Westberg v. Pettiford, 148 Minn. 386 , ; Frey v. Vanderhoof, 15 Wis.

Wentworth v. Tubbs, 53 Minn. 388 , 55 N W. 543.

Wentworth v. Tubbs, 53 Minn. 388 , ; City of Ortonville v. Geer, 93 Minn. 501 , , 106 Am.

If the mortgage had been given before the improvement was under way, as in Wentworth v. Tubbs, 53 Minn. 388 , 55 N W. 543, or if the mortgage had been taken or money paid or rights lost in reliance upon some act or conduct of plaintiff, a different question would be presented.

Knight v. Norris, 13 Minn. 438 (473) ; Gardner v. Leck, 52 Minn. 522 , ; Wentworth v. Tubbs, 53 Minn. 388 , ; Wanganstein v. Jones, 61 Minn. 262 , l7.

The case of Wentworth v. Tubbs, 53 Minn. 388 , , presented a controversy between a lien claimant and a mortgagee, and involved the question whether the *280 lien there before tbe court was prior to a mortgage upon tbe premises, wbicb was executed and recorded before tbe improvements thereon were commenced.

The same principle in this respect has been subsequently recognized in the cases of Wentworth v. Tubbs, 53 Minn. 388 , , and Miller v. Stoddard, 50 Minn. 272 , , but it is claimed for the appellant that chapter 101, p. 224, Laws 1895, which reads as follows: Such liens shall attach at the time of the furnishing of the first item of such labor, skill, material or machinery, and shall be preferred and be prio

The doctrine of subrogation has recently been considered by this court in two cases: Emmert v. Thompson, 49 Minn. 386 , ( ,) and Wentworth v. Tubbs, 53 Minn. 388 , ( .)