Ackerson v. Albuquerque Lumber Co.

• Decision Date: 27 January 1934
• Docket Number: No. 3851.,3851.
• Citation: 38 N.M. 191,29 P.2d 714
• Parties: ACKERSON et al.v.ALBUQUERQUE LUMBER CO.
• Court: New Mexico Supreme Court

38 N.M. 191

29 P.2d 714

ACKERSON et al.

v.ALBUQUERQUE LUMBER CO.

No. 3851.

Supreme Court of New Mexico.

Jan. 27, 1934.Rehearing Denied March 3, 1934.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Action by Harry H. Ackerson and another against George Townsend and wife, in which the Albuquerque Lumber Company intervened. From judgment recognizing a materialman's lien claimed by intervener, plaintiffs appeal.

Reversed and remanded, with directions.

In claim for materialman's lien, description of property “sufficient for identification” requires description which, spread on public records, fairly and reasonably constitutes constructive notice. Comp.St.1929, § 82-206.

Dudley Cornell, of Albuquerque, for appellants.

George S. Klock, of Albuquerque, for appellee.

WATSON, Chief Justice.

This suit was commenced by Ackerson against Townsend and wife to foreclose a deed of trust given by defendants Townsend to plaintiff's assignor, covering lot 1, block 59, Terrace addition, Albuquerque, as designated on the plat of that addition filed May 24, 1928. Albuquerque Lumber Company intervened, claiming a materialman's lien. From a judgment recognizing suck lien and giving it priority to the deed of trust, plaintiff appeals.

Appellant first attacks the sufficiency of the filed claim as the basis of a lien, because of its attempted description of the property to be charged. The only descriptive or identifying data furnished is this: “Lot one (1) of block numbered thirty-five (35) in the Terrace Addition to the City of Albuquerque, New Mexico, as shown on map filed May 24th, 1928, together with all improvements thereon, for materials furnished by claimant to be used in the construction, alteration and repair *** of a certain dwelling situated thereon. *** That the name of the owner or reputed owner of said property is Geo. Townsend & Susie B., his wife, and the name of the person to whom claimant furnished the said material is Geo. Townsend.”

A claim of lien should contain “a description of the property to be charged with the lien, sufficient for identification.” Comp. St. 1929, § 82-206. The claim here in suit does not describe the property upon which the lien was adjudged. It appears on its face to describe other property. We must seek in the findings a theory to support the judgment.

It appears that the deed of trust was given to secure a loan to be used in the erection of a residence and garage on the property in question. The loan was negotiated through one Hammond, who, as agent of the lender, disbursed the money from time to time as needed in making the improvement. He knew that the appellee's materials were being used, had himself paid $500 on the account, and was advised of an unpaid balance of some $700. According to the plat referred to, there is no block 35 in the Terrace addition. The plaintiff is not a holder for value, the assignment having been made to enable him to foreclose.

Though not found, the evidence discloses, and counsel do not question, that appellee intended to claim a lien on the property here in question, and that it was misdescribed through mere inadvertence; that, as originally surveyed and platted, the Terrace addition did contain a block numbered 35, but that as resurveyed, and according to the later plat filed May 24, 1928, the land formerly in block 35 was included in blocks 34 and 36; and that Townsend owned and was engaged in improving other property in the addition, none, however, in which either appellee or appellant was interested.

[1] These facts, of course, have their appeal to a court of equity, naturally viewing with favor the underlying principle of mechanics' and materialmen's liens that he whose labor or material goes to enhance the value of a property may fairly look to it for reimbursement.

Nevertheless, the lien is of statutory, not equitable, origin. It depends wholly upon the existence of certain conditions and the performance by the claimant of a prescribed act. The absence of the conditions or the nonperformance of the act leaves equity powerless. The court's function is not to create a lien. It can only declare and enforce an existing lien.

[2][3] In New Mexico the lien arises upon the filing of a claim for record. Certain matters must be stated therein. Among these is “a description of the property to be charged with the lien, sufficient for identification.”

In the earlier decisions in this jurisdiction, this statute, by which a lien is imposed upon property regardless of the owner's consent, was deemed subject to strict construction, because in derogation of the common law. Later, however, the remedial character of the statute more strongly impressed itself; a liberality of construction appropriate in such cases was indulged; and the rule may now be said to be that substantial compliance with the statutory requirements will support the lien. Hot Springs Plumbing & Heating Co. et al. v. Wallace, 38 N. M. 3, 27 P.(2d) 984.

In determining what is substantial compliance with some of the particular statutory requirements, consideration will naturally and properly be given to the purpose of such requirement and to the effect of a misperformance in that respect upon the rights of others. To illustrate, in Hot Springs Plumbing & Heating Co. v. Wallace, supra, in determining whether the verification was sufficient, though not a literal compliance with the statute, we were influenced by our view that the verification was not required as proof of the contents of the claim.

This is not exactly the case with the descriptive requirement, as to which the statute furnishes the test-“sufficient for identification”-and at once discloses the office-“identification” of the property to be charged. It would be inept to say of a description that it is substantially sufficient for identification. Clearly it must be sufficient or there will be no lien. Yet there is enough of indefiniteness in the test to leave room for difference of opinion in the particular case.

[4] If we are so far correct, the findings above mentioned, in the main, have no bearing on the sufficiency of this description to support a lien. The knowledge of the “owner,” considered as “the party in interest who is the source of authority for the improvement” (Freidenbloom v. Pecos Valley Lumber Co., 35 N. M. 154, 290 P. 797, 798), as Townsend is here, or of any other party in interest, that materials have been furnished or are unpaid for; even his written engagement to pay for them; actual service of a claim of lien upon him; the claimant's evident purpose and intent to claim the lien-no one or all of such facts can take the place of the indispensable act of filing for record a sufficient claim.

[5] That leaves for consideration the single finding that there is no block 35 in the Terrace addition.

This fact distinguishes the case at bar from D. I. Nofziger Lumber Co. v. Waters, 10 Cal. App. 89, 101 P. 38, Goodrich Lumber Co. v. Davie, 13 Mont. 76, 32 P. 282, and Powers v. Brewer, 238 Ky. 579, 38 S.W.(2d) 466, 467, on which appellant mainly relies. These cases strongly hold that a description of one property cannot be varied by evidence of intent and mistake, so as to apply to and support a lien upon another. In the first of these decisions, block 4 was misdescribed as block 5. In the second, lot 14 was misdescribed as lot 13. In the third, the east 15 feet of lot 19 and all of lot 20 was misdescribed as lot 18 and 5 feet of lot 19. In the two last mentioned, the properties adjoined and were in the same ownership. In the first mentioned, the error was evidently caused by the owner's similar error in his recorded building contract. All of these suits were against the owner, and in not one of them could he have been misled.

Many decisions are brought to our attention instancing in one way or another an inaccurate or erroneous description sustained as support for a lien. It would not be profitable to review them here. Perhaps no branch of the law is in greater confusion than that of mechanics' and materialmen's liens. The reason is that there is no uniformity of statute, either in expression or in principle. This important fact has not always been recognized. Occasionally the court of one state has adopted a ruling in another without consideration of statutory differences....