Blanshard v. Schwartz
| Decision Date | 30 July 1898 |
| Citation | 54 P. 303,7 Okla. 23,1898 OK 32 |
| Parties | BLANSHARD v. SCHWARTZ. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In order to establish a mechanic's lien, the statement filed for that purpose must substantially comply with the statute and where the lien claimant files in the office of the clerk of the district court of the county in which the land is situated a statement setting forth the amount claimed, the items thereof, the name of the owner, the name of the contractor, the name of the claimant, and the description of the property, so as to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, verified by affidavit, it will be sufficient.
2. Where a lien statement describes the property subject to a lien as "situated in the county of Kay, territory of Oklahoma, to wit, lot No. 15 in block No. 34," but fails to state the town in which the property is situated in the body of the lien statement, but in the itemized statement which is attached to and made a part of the lien statement correctly describes the property; and when it appears that no other property answers to such description, and the property may easily be found by any one who may be acquainted with such description, and with the facts which exist, and which may be easily ascertained upon inquiry, as the evidence shows in this case; and where there is testimony showing that the partner of the mortgagee had actual notice of such mechanic's lien,--these facts are sufficient notice to a subsequent mortgagee, notwithstanding there is a material defect in the description of the property in the body of the lien statement.
3. In an action to foreclose by a mortgagee, all lienholders and incumbrancers should be made parties; and a lienholder who is not made a party in the first instance is entitled, upon application, to intervene at any time before final judgment and, by answer in the nature of a cross petition, set forth his claim of lien, and ask to have the same foreclosed.
4. Where a mortgagee brings foreclosure proceedings, and fails to make the mechanic's lien holder party to the action, a subcontractor, who has intervened within one year from the time he filed his lien statement, may make the contractors parties to the action, after the expiration of one year, for the purpose of asserting and foreclosing his lien against a mortgagee and other incumbrancers.
Error to district court, Kay county; A. G. C. Bierer, Judge.
This was an action commenced in the district court of Kay county on October 12, 1894, by John J. Blanshard, cashier of the Bank of Commerce, plaintiff, against C. H. Murray and S. M Moore, partners, under the firm name of Murray & Moore, and Sarah J. Moore, defendants, upon a certain promissory note, and for the foreclosure of a certain real-estate mortgage, on lot No. 15 in block No. 34 in the town of Newkirk, in said county, said note and mortgage having been executed by the said defendants on the 11th day of August, 1894. It appears that on September 27, 1893, the said firm of Murray & Moore entered into a contract with Brenneman & Line to erect on said real estate a certain frame building; and, on or about said date, C. A. Schwartz, the defendant in error in this action, entered into a subcontract with Brenneman & Line to furnish for the erection of said building a certain amount of lumber to be used in the construction of said building upon said real estate; that on the 20th day of December, 1893, the defendant in error, C. A. Schwartz, filed in the office of the clerk of the district court of Kay county his mechanic's lien statement. It further appears from the record that he served the said Murray & Moore, the owners of the property, with notice of filing of the mechanic's lien, as required by law. The plaintiff did not make C. A. Schwartz a party defendant to the action. However, on December 17, 1894, C. A. Schwartz, defendant in error, after first obtaining leave from the court, intervened in said action. On March 22, 1895, the plaintiff obtained a judgment against the defendants in the original action for $1,145, but no decree of foreclosure and sale of premises was made at the time, pending the determination of the intervener's claim. On October 17, 1895, the defendant in error, C. A. Schwartz, filed an amended answer and cross petition, leave of the court having first been obtained. Leave was also granted the intervener, Schwartz, to amend his mechanic's lien statement. The plaintiff in error objected to the filing of the amended petition and cross petition, and also to permitting the intervener to amend his mechanic's lien. The plaintiff filed a demurrer to the intervener's amended answer and cross petition, on the following grounds: First, that the court has no jurisdiction to hear and determine this action; second, that there is a defect of parties defendant to the cause of action sought to be set forth in the answer and cross petition; third, that the said answer and cross petition does not state facts sufficient to constitute a cause of action. Pending the hearing of said demurrer, the intervener asked leave of the court to amend his cross petition, by making Brenneman & Line, the original contractors, parties defendant to the action, which was granted by the court, and to which ruling of the court the plaintiff at the time excepted. Thereupon the court overruled the demurrer to the amended answer and cross petition of the intervener, Schwartz, to which ruling of the court the plaintiff excepted. Thereupon the plaintiff filed a reply to the amended answer and cross petition, denying each and every material allegation therein contained. On August 28, 1896, the cause was tried by the court upon the amended answer and cross petition of the intervener, Schwartz, and the reply filed thereto by the plaintiff. The court rendered judgment in favor of the intervener, Schwartz, and against the contractors, Brenneman & Line, in the sum of $364.78, sustained the mechanic's lien, and declared it to be a first lien upon the above-described premises, to which ruling of the court the plaintiff excepted at the time. Thereupon the plaintiff filed a motion for a new trial upon the following grounds: First, that the decision is not sustained by the evidence; second, that the decision is contrary to law; third, errors of law occurring at the trial, and excepted to by the plaintiff,--which motion was by the court overruled, to which ruling of the court the plaintiff excepted, and brings the cause on appeal to this court. Affirmed.
Frank Exline and W. L. Barnum, for plaintiff in error.
C. T. Atkinson and L. C. Brown, for defendant in error.
HAINER, J. (after stating the facts as above).
The questions to be determined by this court in this controversy arise between the plaintiff in error, as mortgagee of a certain lot situated in the town of Newkirk, Okl. T., and the defendant in error, who claims a prior lien on the same property by virtue of a mechanic's lien. The plaintiff in error claims a lien by virtue of a mortgage executed to him as cashier of the Bank of Commerce on the 11th day of August, 1894. The defendant in error asserts that his lien is a valid and superior lien to that of the mortgagee, which he claims to have secured on said property by virtue of his mechanic's lien filed on December 20, 1893, for lumber and material furnished for the construction of a building upon the same premises on which the mortgage was executed to the plaintiff. It is contended by the plaintiff in error that the original mechanic's lien statement filed December 20, 1893, by C. A. Schwartz, defendant in error, was void as against the plaintiff, a subsequent mortgagee, for two reasons: First, because the statement does not contain an averment that the lumber and materials were furnished with the intention and agreement that they were to be used in the construction of a building upon certain premises; and, second, because the description of the land upon which the building is situated is fatally defective.
Section 4528 of our statute provides: "Any person claiming the lien as aforesaid shall file in the office of the clerk of the district court of the county in which the land is situated a statement setting forth the amount claimed and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant and the description of the property subject to the lien, verified by affidavit." The lien statement of the defendant in error complies with every provision of this statute with the exception of a defect in the description of the property, in this, to wit: The "Town of Newkirk" is omitted from the body of lien statement. This defect, however, is cured by the itemized statement which is attached to and made a part of the original statement, which accurately describes the property. The original statement is as follows: "C. A. Schwartz represents that he is the claimant filing this statement or lien as hereinafter specified; that under and in pursuance of a contract therefor, made by C. A. Schwartz, the claimant herein, with Brenneman & Line, contractors, with Murray & Moore, owners of land described below, the said claimant furnished material to the amount of $389.58, which said C. A. Schwartz furnished between the 27th day of September, 1893, and the 27th day of October, 1893, and that the...
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