Armitage v. Bernheim

• Decision Date: 24 December 1919
• Citation: 32 Idaho 594,187 P. 938
• Parties: C. E. ARMITAGE, Respondent, v. I. W. BERNHEIM, Appellant
• Court: Idaho Supreme Court

187 P. 938

32 Idaho 594

C. E. ARMITAGE, Respondent, v. I. W. BERNHEIM, Appellant

Supreme Court of Idaho

December 24, 1919

MECHANIC'S LIEN-PROPERTY SUBJECT TO-STATUTORY PROVISION-SCOPE OF-TOWN SITE NOT LIENABLE.

1. C S., sec. 7339, confers a right of lien for labor performed or materials furnished on certain improvements or structures and C. S., sec. 7344, specifies the character and extent of land subject to such lien.

[As to the buildings and other property subject to lien, see note in 78 Am.Dec. 694.]

2. A town site is neither a structure nor an improvement within the meaning of C. S., secs. 7339 and 7344, and is not the subject of a lien under these sections.

[As to the meaning of the word "building" within a mechanic's lien statute, see note in Ann.Cas. 1912B, 7]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl. A. Davis, Judge.

Consolidated action to foreclose an alleged laborers' lien and to quiet title founded upon a tax deed. Judgment giving holder of tax deed title subject to the lien. Modified and affirmed.

Cause remanded with instructions, and judgment affirmed. Costs awarded to appellant.

Hawley & Hawley, for Appellant.

Under the facts as developed in this case, the plaintiff Armitage was not entitled to a lien in any amount or at all upon the Horseshoe Bend town site or any part or portion thereof. (Rev. Codes, secs. 5110, 5112, 5114, 5116; Rice v Colorado Smelting Co., 28 Colo. 519, 66 P. 894; 20 Am. & Eng. Ency. of Law, 311; Phillips v. Salmon River etc. Co., 9 Idaho 149, 72 P. 886; Pacific States Sav. L. & B. Co. v. Dubois, 11 Idaho 319, 83 P. 513; Stephens v. Hicks, 156 N.C. 239, Ann. Cas. 1913A, 272, 72 S.E. 313, 36 L. R. A., N. S., 354; Smallhouse v. Kentucky etc. Min. Co., 2 Mont. 443; South Fork Canal Co. v. Gordon, 6 Wall. (U.S.) 561, 18 L.Ed. 894, see, also, Rose's U.S. Notes; Whitney v. Higgins, 10 Cal. 547, 70 Am. Dec. 748; Morris v. Wilson, 97 Cal. 644, 32 P. 801; Rollin v. Cross, 45 N.Y. 766; Pilz v. Killingsworth, 20 Ore. 432, 26 P. 305; Bradbury v. Idaho etc. Land Imp. Co., 2 Idaho 239, 10 P. 620; Moore v. American Industrial Co., 138 N.C. 304, 50 S.E. 687.)

The appellant Bernheim, by reason of acquiring the tax title, is the owner of the Horseshoe Bend town site and the whole thereof, free and clear of any and all claims of plaintiff and respondent Armitage. (Jones v. Black, 18 Okla. 344, 11 Ann. Cas. 753, 88 P. 1052, 90 P. 422; Waterson v. Devoe, 18 Kan. 223; McLaughlin v. Acom, 58 Kan. 514, 50 P. 441; Miller v. Ziegler, 31 Kan. 417, 2 P. 601; Uhl v. Small, 54 Kan. 651, 39 P. 178; Moore v. Boagni, 111 La. 490, 35 So. 716; Booker v. Crocker, 132 F. 7, 65 C. C. A. 627.)

J. B. Eldridge, E. G. Davis and Floyd C. White, for Respondent.

Our lien statutes, secs. 5110 and 5113, Rev. Codes, taken together, are more broad and liberal, perhaps, than the lien statutes of any other state. In sec. 5110 a "wagon road" is classed as a "structure." This statute appears to have been first enacted in 1893, when the only wagon roads known in the state were but little more than improved trails over which it was possible to drive a wagon.

A town site divided into lots and blocks with the necessary streets, alleys and sidewalks, with the points of intersection all designated by appropriate markings, is much more a "structure" within the ordinarily accepted meaning of that term than a wagon road of the 1893 type could possibly be, and since the statute specifically designated such a wagon road as a structure, it would be a very narrow interpretation to refrain from bringing a town site within the meaning of the words "any other structure" as used in the statute. Even though there should be some difficulty in designating a town site so laid out, marked and developed as a structure, there should be no difficulty whatever in holding it to be an "improvement" within the meaning of the statute and within the meaning of the decisions.

A person who performs labor, not only in the construction, but also in the alteration or repair of any of the structures particularly designated in sec. 5110 or any other structure is entitled to a lien upon the structure and of sufficient land surrounding the same to make his claim good. Under the broad terms of our statute, the Armitage claim comes fully and fairly within the intent of the legislature. (Helm v. Chapman, 66 Cal. 291, 5 P. 352; Williams v. Mountaineer Gold Min. Co., 102 Cal. 134, 34 P. 702, 704, 36 P. 388; Haskell v. Gallagher, 20 Ind.App. 224, 67 Am. St. 250, 50 N.E. 485; Peaceable Creek Coal Co. v. Jackson, 26 Okla. 1, Ann. Cas. 1912B, 1, 108 P. 409; Stevens v. City of Port Huron, 149 Mich. 536, 12 Ann. Cas. 603, 113 N.W. 291; Saunders v. Wilson, 19 Tex. 194, 197; Parker v. Wulstein, 48 N.J. Eq. 94, 21 A. 623; Spencer v. Tobey, 22 Barb. (N. Y.) 260; Central Trust Co. v. Sheffield etc. Ry. Co., 42 F. 106, 9 L. R. A. 67; French v. City of New York, 16 How. Pr. (N. Y.) 220, 29 Barb. 363; Chase v. Sioux City, 86 Iowa 603, 53 N.W. 333; Rolewitch v. Harrington, 20 S.D. 375, 107 N.W. 207, 6 L. R. A., N. S., 550; Hoppes v. Baie, 105 Iowa 648, 75 N.W. 495; Bates v. Harte, 124 Ala. 427, 82 Am. St. 186, 26 So. 898; Lockhart v. Rollins, 2 Idaho 540, 21 P. 413.)

The lien law and all its provisions and all proceedings under it are to be liberally construed with a view to effect the objects of the act. (Colorado Iron Works v. Rickenberg, 4 Idaho 262, 266, 38 P. 651; Phillips v. Salmon River Min. Co., 9 Idaho 149, 72 P. 886; Thompson v. Wiseboy Min. etc. Co., 9 Idaho 363, 74 P. 958; Idaho Comstock Min. etc. Co. v. Lundstrum, 9 Idaho 257, 274, 74 P. 975; Naylor v. Lewiston etc. R. Co., 14 Idaho 789, 802, 96 P. 573; Hill v. Twin Falls etc. Land & Water Co., 22 Idaho 274, 125 P. 204; Chamberlain v. City of Lewiston, 23 Idaho 154, 129 P. 1069.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is a consolidated action, involving an action to foreclose an alleged laborers' lien by respondent Armitage on the Horseshoe Bend town site in Boise county, consisting of about 180 acres, and an action, founded upon a tax deed, to quiet title to the same lands in appellant Bernheim.

Other issues were involved upon the trial which are not material here, the court having given judgment in favor of Armitage, and Bernheim being the only party who has prosecuted an appeal.

The Horseshoe Bend Company, Limited, was organized as a corporation October 2, 1905, and March 24, 1906, it executed a deed of trust to the Idaho Trust & Savings Bank, Limited, hereinafter called the trustee, hypothecating all of its property to secure two hundred mortgage bonds, par value $ 500 each, the deed providing that in case of default in payment of interest the holders of one-fifth of the bonds issued and outstanding might commence proceedings to foreclose. Seventh-three thousand dollars par value of the bonds were sold, Bernheim purchasing $ 17,000 thereof. In April, 1911, Bernheim demanded that the trustee commence foreclosure proceedings, and the action was begun in Boise county on November 13th thereafter.

In the meantime, on July 6, 1911, the lands involved in this appeal were sold to Boise county for the delinquent 1910 taxes, and the tax certificate was sold October 26, 1911, to the Boise Basin Bank, which in turn, on August 10, 1913, sold it to Bernheim. On August 13, 1913, a stipulation was entered into between the trustee and the Horseshoe Bend Company, which provided that execution would be waived, and warranty deed be made by the Horseshoe Bend Company to the Boise Title & Trust Company and placed in escrow with the trustee, and the Horseshoe Bend Company might continue to sell its property in a specified manner for the benefit of bondholders, and upon certificate of default upon the part of the Horseshoe Bend Company, by the trustee, the warranty deed held in escrow should be delivered to the Boise Title & Trust Company, and held for bondholders, and that the passing of the warranty deed should be considered as satisfaction of the mortgage or deed of trust. The deed was actually made, executed and placed in escrow on August 12, 1913. On August 30, 1913, a decree of foreclosure was entered and execution waived by the foregoing stipulation.

On June 25, 1914, Armitage filed notice of his claim of lien with the recorder of Boise county, and on July 1st, thereafter, commenced his action to foreclose the same.

On July 6, 1914, the period of redemption of the 1910 tax certificate expired. On September 14, 1914, the warranty deed to the Boise Title & Trust Company was recorded in Boise county. In December, thereafter, the decree of foreclosure was recorded. On January 18, 1915, Bernheim gave notice to the Horseshoe Bend Company of tax delinquency as a basis for applying for a tax deed, which was issued on January 29, 1915. April 9th, thereafter, Bernheim commenced his action to quiet title, having purchased the delinquent tax certificates for the years 1911, 1912 and 1913, and paid the taxes for 1914.

The claim of lien of Armitage upon the platted town site covers a period from February 5, 1906, to June 1, 1914, for labor which, it is alleged:

"Consisted of digging irrigation ditches and improving same for said land, building fences upon said land, laying out plans and directing work upon said property, directing surveys to be made and assisting therein, directing the work of...