We are not persuaded by Herzig's arguments and reliance on decisions from other jurisdictions. Unknown at common law, mechanic's liens are purely creatures of statute. E.g., Woolridge v. Torgrimson et al., 59 N.D. 307, 229 N.W. 805 (1930); Rolla Community Hosp., Inc. v. Dunseith Community Nursing Home, Inc., 354 N.W.2d 643, 647 (N.D. 1984); 53 Am.Jur.2d Mechanic's Liens § 2 (1970). Although at one time there was a Uniform Mechanic's Lien Law, currently mechanic's lien laws of each of the states are known for the extent to which they vary from each other in both application and operation. Woolridge, 229 N.W. at 805; 53 Am.Jur.2d Mechanic's Liens § 7 (1970).
[a] thing is deemed to be affixed to the land when it is attached by the roots, as in the case of trees, vines or shrubs, or imbedded in it, as in the case of walls, or permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws. N.D. Cent. Code § 47-01-05 (defining the term "fixture");see Woolridge v. Torgrimson, 229 N.W. 805, 806 (N.D. 1930) (Fixtures, such as a barn, when permanently attached to the soil, are part of the real estate.). When applying these statutes in determining whether a modular unit or building affixed to land constitutes real property as opposed to personal property, it is well-established that North Dakota courts "look to the intention of the parties, the manner in which the article or building is annexed, and its adaption to the use of the realty."
Because of the diversity of mechanic's lien laws across the country, caselaw from other states “should be approached with caution.” Independent Trust v. Stan Miller, Inc., 796 P.2d 483, 487 (Colo.1990); see Nickel Mine Brook v. Joseph E. Sakal, 217 Conn. 361, 585 A.2d 1210, 1213 (1991); Woolridge v. Torgrimson, 59 N.D. 307, 229 N.W. 805, 805 (1930). Having considered our statutory scheme and the purpose behind our mechanic's lien statutes, we decline to adopt the cases from other jurisdictions that apply equitable subrogation in circumstances surrounding mechanics' liens because our lien laws are exclusive to this state.
Real property consists not only of land which is immovable but also that which is affixed to the land, that which is incidental or appurtenant to the land, and that which is immovable by law. Section 47-01-03, N.D.C.C., Mueller v. Mercer County, N.D., 60 N.W.2d 678. Fixtures, such as a barn when permanently attached to the soil, are a part of the real estate. Woolridge v. Torgrimson, 59 N.D. 307, 229 N.W. 805. Fixtures are defined by statute as: A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs, or imbedded in it, as in the case of walls, or permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.
It may also be stated to be a general rule that a mortgage upon real estate not only covers buildings and improvements on the land at the time the mortgage was given but also attaches to all buildings and improvements subsequently annexed to the real estate during the life of the mortgage. Woolridge v. Torgrimson, 59 N.D. 307, 229 N.W. 805; Kentucky Lumber Mill Work Co. v. Kentucky Title Sav. Bank T. Co. 184 Ky. 244, 211 S.W. 765, 5 ALR 391; Holloway v. Hendrick, 98 NJ Eq 713, 129 A. 702; Basham v. Goodholm S. Invest. Co. 52 Okla. 536, 152 P. 416; Cutler v. Keller, 88 Wn. 334, 153 P. 15, LRA 1917C 1116. The state premises its argument upon the foregoing legal principles, and asserts that by virtue of the law as of the time when the mortgage was executed it became entitled by contract to a mortgage lien, not only upon the land and improvements thereon as of that time, but that it also had the right to a first lien upon any buildings or improvements subsequently built upon or affixed to the land covered by its mortgage.
Mayer v. Studer M. Co. 66 N.D. 190, 262 N.W. 929; Jacobson v. State, 68 N.D. 259, 278 N.W. 652; Nobles Twp. v. Aasen, 8 N.D. 77, 76 N.W. 990; Schussler v. Hennepin County, 67 Minn. 412, 70 N.W. 6, 39 L.R.A. 75, 64 Am. St. Rep. 424. The general rule in all jurisdictions is there can be no mechanic's lien unless it attach to the real estate. Woolidge v. Torgrimson, 59 N.D. 307, 229 N.W. 805. In the absence of an applicable statute providing otherwise an encumbrance upon land, existing before a building is commenced, attaches to the building as it progresses, and is entitled to priority, as to the building as well as the land, over mechanic's liens arising out of the construction of the building.
The sheriff's deed issued on foreclosure of this mortgage contains the same provision. It is a well established rule that buildings of a permanent nature, erected on and annexed to the land after the giving of a mortgage, go with the land, and inure to the benefit of the mortgagee. 27 Cyc. 1145; Woolridge v. Torgrimson, 59 N.D. 307, 229 N.W. 805; Gray v. Krieger, 66 N.D. 115, 262 N.W. 343. It is, however, earnestly insisted by the defendant bank that, at the time James P. McGee made application to it for the mortgage, dated September 26th, 1924, he not only stated that the buildings were located on the west eighty, but that it establishes his recognition of the change in the boundary line, and that he intended to mortgage the barn to the defendant bank. There would be some force to this contention if the preponderance of the evidence were not to the contrary.
Both of these elements tend to establish it as a fixture and a part of the real estate. The only thing that could keep it from becoming a part of the real estate under such circumstances would be a definite agreement that it was to remain personal property. Since no such agreement is shown it is apparent that the mortgage of the plaintiff attached to the house during its process of construction. Woolridge v. Torgrimson, 59 N.D. 307, 229 N.W. 805. The plaintiff's lien which had thus attached to the house could not be divested by the execution of a chattel mortgage three years later. The trial court correctly found that the house is permanently attached to the real estate and constitutes a part thereof and is subject to the lien of plaintiff's mortgage.