Chapman v. Brewer

• Decision Date: 19 February 1895
• Parties: CHAPMAN v. BREWER ET AL.
• Court: Nebraska Supreme Court

43 Neb. 890

62 N.W. 320

CHAPMAN

v.BREWER ET AL.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. “A party taking a mortgage on real estate is bound at the time to know whether material has been furnished or labor performed in the erection, reparation, or removal of improvements on the premises within the four prior months.” Henry & Coatsworth Co. v. Fisherdick, 55 N. W. 643, 37 Neb. 207, followed.

2. “The lien of a mortgage on real estate, taken while a building is in process of erection thereon, is subject to the claims of material men and laborers for material already and thereafter furnished, and for labor already and thereafter performed in the erection of such building, when the commencement of such furnishing of material or the commencement of the performance of such labor was prior to the record of said mortgage.” Henry & Coatsworth Co. v. Fisherdick, 55 N. W. 643, 37 Neb. 207, followed.

3. Evidence may be introduced during trial to show that the date of the commencement of labor or furnishing material stated in the claim filed to perfect a mechanic's lien is erroneous, and that the beginning of the labor or furnishing was of an earlier date, where the establishing of such prior date will only affect the rights of parties to the suit who were bound to take notice of the true date of the commencement of labor or furnishing material, and whose mortgage liens were acquired after such true date, and prior to the time of filing the claim for lien, and who did not and could not depend upon it for notice of such date, and whose rights could not be and were not changed or affected by the statement of the date in the claim for lien.

4. In an appeal case an issue not presented by the pleadings and not fairly within their scope, and therefore presumably not decided by the trial court, will not be considered in this court.

5. The oath required by statute to be made to a claim for a mechanic's lien may be upon information and belief.

6. The words “any person,” used in the statute which provides for the filing of a mechanic's lien, to designate who may acquire such liens, includes both natural and artificial persons, or corporations, and in this last signification is not confined to corporations created by virtue of the laws of this state, but applies to and includes foreign corporations or those formed under the laws of other states as well.

7. The proof in this case held to sufficiently establish the existence of the appellant company as a corporation, to relieve it from collateral attack.

8. Where there is no proof of the provisions of the statutes of a sister state, they will be presumed to be the same as those of our own state upon the subject involved.

9. Where a pleading, in one portion of it, contains a denial of the corporate existence of a company, and, in another paragraph of the pleading, the issue is raised of the right of the company as a foreign corporation to acquire or enforce a mechanic's lien in this state, the pleading will be construed as an admission of the corporate capacity of such company.

10. A treasurer and bookkeeper of a corporation, where the articles of incorporation require every officer of the company to be a stockholder, may verify the claim for a mechanic's lien.

11. The acceptance of a mortgage by a mechanic's lien holder, covering the property to which the mechanic's lien has attached, will not be deemed a waiver of the former lien, where such was not the intention of the parties, and such additional security does not infringe upon the rights of other parties.

12. The statement in regard to a lien contained in the contract for furnishing material, etc., the basis for the claim of mechanic's lien, held not to be a waiver of the right to the statutory lien.

Appeal from district court, Cedar county; Norris, Judge.

Action by H. T. Chapman against Isaac Brewer and wife, the Cedar County Bank, and the Des Moines Manufacturing & Supply Company. From the judgment, the Des Moines Manufacturing & Supply Company appeals. Reversed.

E. E. Byrum, for appellant.

H. A. Miller & Son, B. Reedy, Davis, Gantt & Briggs, and A. M. Gooding, for appellees.

HARRISON, J.

This action was instituted in the district court of Cedar county by the plaintiff, H. T. Chapman, to foreclose a real-estate mortgage executed and delivered to him by Isaac and Lucinda Brewer, upon property described in the petition, situated in Cedar county. The other parties made defendants to the action in addition to the Brewers were the Cedar County Bank and the Des Moines Manufacturing & Supply Company. The defendant company answered, and filed a cross bill, in which it claimed a mechanic's lien, prior in point of time to either of the mortgages. The Cedar County Bank filed an answer or cross petition, setting up a lien by mortgage executed and delivered to it by the Brewers, claiming it to be second and subsequent only to plaintiff's mortgage. Plaintiff filed a reply to the answer and cross petition of the company, by which was raised the question of the priority of the mechanic's lien of the company. Upon trial the court determined and adjudged that the liens of the plaintiff and Cedar County Bank were prior and superior to that of the company, and from this decree the company has appealed to this court.

In the original claim of lien filed, which was introduced in evidence, there appears the following statement: “That on and between the 30th day of December, 1889, and the 25th day of January, 1890, they furnished lumber and materials and machinery supplies and labor for said building. * * *” The mortgage to Chapman was dated November 15, 1889, and recorded November 21, 1889; and the mortgage to the Cedar County Bank was dated November 15, 1889, and recorded November 27, 1889. In the answer or cross petition of the Des Moines Manufacturing & Supply Company it was stated that work was commenced November 5, 1889, in and on the mill, by a party sent by it from Des Moines for such purpose; and the proof shows that work was so commenced by their workman Morris on the 5th or 7th of November, 1889, and that some of the material was furnished during the month of October, immediately preceding. In the bill or statement of account attached to the claim of lien there is, of date December 31, 1889, an item of charge in the following words, viz.: “50 days, by Morris, to Dec. 31, '89, at $4, $200.” It is strenuously argued that the company is bound by the statement in the claim filed in reference to the dates between which the labor was performed and material furnished, and that the evidence introduced of a different and earlier date of the commencement of such labor, etc., was incompetent, and could not be received to vary or change the date assigned in the claim as it appeared of record. It may be well, in order to fully and properly understand the situation of the parties, to state here that the claim of lien was filed March 17, 1890. The statute of this state in regard to mechanics' liens is as follows: “Any person entitled to a lien under this chapter shall make an account in writing, of the items of labor, skill, machinery or material furnished, or either of them, as the case may be, and, after making oath thereto shall, within four months of the time of performing such labor and skill in furnishing such machinery or material, file the same in the office of the register of deeds,” etc.,--and does not require that the dates of performance of labor or furnishing material shall be stated in the claim for lien; and where it appears from the affidavit filed, and the accompanying account of labor or material, that such performance and furnishing were within the time required by the law to entitle the claimant to a lien, it is sufficient. The lien papers in this case disclose that the last labor was performed or material furnished January 25, 1890, and the claim filed March 17th of the same year. This fulfilled the requirement of the statute. In Noll v. Kenneally, 37 Neb. 879, 56 N. W. 722, this court stated the rule to be as follows: “The failure of an account filed to secure a mechanic's lien to state the dates the various items of material were furnished will not vitiate the lien if it appears from the account and affidavit thereto attached that such materialswere furnished within the requisite time to entitle the claimant to a lien therefor.” And in Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207, 55 N. W. 643, it was held that “a party taking a mortgage on real estate is bound at the time to know whether material has been furnished or labor performed in the erection, reparation, or removal of improvements on the premises within the four prior months.” And, further: “The lien of a mortgage on real estate, taken while a building is in process of erection thereon, is subject to the claims of material men and laborers for material already and thereafter furnished, and for labor already and thereafter performed in the erection of such building, when the commencement of such furnishing of material or the commencement of the performance of such labor was prior to the record of said mortgage.” Applying the rules of law, as announced by this court, just quoted, to the facts in the case at bar, and further bearing in mind that, by the provisions of our statute on the subject under discussion, the lien attaches at the commencement of the labor or furnishing material, the relative positions of the liens involved are not, in so far as they are governed by their respective dates, very difficult to ascertain or of assignment. The fact that the date of the commencement of labor or furnishing of material was stated to be December 30, 1889, when it should have been November 5th or 7th, could not and did not have any significance for or to mortgage lien holders, or in any manner affect their rights under the mortgages executed during the month of November, at a time when the work and furnishing which were the...