57 CJS, Mechanics' Liens, § 222-224, pp 792-797; 53 Am Jur 2d, Mechanics' Liens, § 289, p 824; 16 Mich Law Practice, § 51, pp 159-161. In Heide v Societatea Romana, 262 Mich. 394; 247 N.W. 702 (1933), the Supreme Court held that the priority position of a lienholder can be altered where the surrounding circumstances render it inequitable for the lienholder to take priority over the construction lender. In a mechanics' lien case, the burden of proof rests upon the party who seeks to show a valid waiver of the lien.
IDS argues, however, that since DeWitt-Newton owned 20% of the outstanding stock of Thunderbird Investment Company, owner of the Thunderbird Inn, DeWitt-Newton was in effect a partial owner of the Inn. As such, IDS contends, DeWitt-Newton is precluded by Heide v Societatea Romana, 262 Mich. 394; 247 N.W. 702 (1933), from claiming that its mechanics' lien has priority over IDS's construction mortgage. We decline to read Heide as broadly as IDS urges.
E. RTC relies upon a 1933 decision of the Michigan Supreme Court, Heide v. Societatea Romana, 262 Mich. 394, 247 N.W. 702 (1933). In Heide, the court held that the priority position of a lienholder can be altered where the surrounding circumstances render it inequitable for the lienholder to take priority over the construction lender.
See R.C.M. 1947, section 93-1301-6, subd. 3; Lindblom v. Employers' Liability Assurance Corporation, 88 Mont. 488, 295 P. 1007; City of Billings v. Pierce Packing Co., 117 Mont. 255, 161 P.2d 636; Mundt v. Mallon, 106 Mont. 242, 76 P.2d 326. As to cases holding that active participation by a contractor in procuring a construction mortgage loan to be made will prevent him from claiming his mechanic's lien is prior to the mortgage lien, even though the mortgage was filed subsequent to the work see Ponder v. Safety Building and Loan Co., 59 S.W. 523, 22 Ky. Law Rep. 1074; Heide v. Societatea Romana De Ajutor Si Cultura Banatiano, 262 Mich. 394, 247 N.W. 702. Cases to the same effect involving representations made by the contractor to the mortgagee, similar to those in the case at bar, whether such representations be by words, writings, silence or conduct, are Higby v. Hooper, 124 Mont. 331, 221 P.2d 1043; Fullerton Lumber Co. v. Miller, 217 Iowa 630, 252 N.W. 760; Commercial Loan Building Ass'n v. Trevette, 160 Ill. 390, 43 N.E. 769; Planters' Lumber Co. v. Griffin, 157 Miss. 714, 124 So. 479, 128 So. 76; Reimann Construction Co., Inc. v. Upton, La. App. 1938, 178 So. 528. Likewise appellants are estopped from asserting that any [6] mechanic's lien they may have is prior and superior to the banks' mortgage by reason of the performance bond given by them and heretofore mentioned. The bond is executed by appellants, as principal, the defendant surety company, as surety in, favor of plaintiff and the two banks, as obligees, "as their interests may appear", guaranteeing to defend, indemnify and save harmless the banks against any and all l