Davis v. Bartz

• Decision Date: 24 October 1911
• Citation: 65 Wash. 395,118 P. 334
• Court: Washington Supreme Court
• Parties: DAVIS v. BARTZ et al.

118 P. 334

65 Wash. 395

DAVIS v. BARTZ et al.

Supreme Court of Washington

October 24, 1911

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Walter Davis against Charles Albert Gray and others. From a judgment for plaintiff, defendant C. A. Bartz appeals. Affirmed.

Stevenson & Sorley, for appellant.

H. F Norris and T. W. Hammond, for respondent.

ELLIS J.

This case presents a contest for priority between a mortgage and a mechanic's lien. The facts as shown by the pleadings and the exhibit thereto attached are as follows: On March 26 1908, the appellant, C. A. Bartz, contracted with one Gray the owner, to erect for him a house upon certain lots in the city of Tacoma. He at once began the work, and completed it on August 22, 1908. On May 23, 1908, while the work was in progress, Gray and wife executed to Bartz a mortgage upon the property. On September 11, 1908, Bartz filed a lien for labor and material upon the premises. On November 19, 1908, he assigned the mortgage to the respondent, Walter Davis. Afterwards, at a time not stated, Andrus-Cushing Lighting & Fixture Company commenced an action to foreclose a lien against the premises for material furnished in the construction of the house, and the appellant, Bartz, intervened, asking foreclosure of his lien. The respondent, Davis, was not a party to that proceeding, and did not appear therein. In July, 1910, this action was commenced by Davis against Gray, Bartz, and others, to foreclose the mortgage. The appellant appeared and filed an answer in the nature of a cross-complaint, setting up his lien, alleging the pendency of the suit to foreclose the Andrus-Cushing lien and his intervention therein, and praying that his lien be adjudged prior to that of the mortgage. The respondent, Davis, demurred to the answer, and the demurrer was sustained. The other defendants defaulted, the defendant Bartz, appellant here, declined to plead further, and a decree was entered, foreclosing the respondent's mortgage and declaring it superior to the appellant's lien. From that decree, Bartz has prosecuted this appeal.

The only question presented for our consideration is as to whether the demurrer to appellant's answer was properly sustained. This question must be answered in the affirmative.

1. No action was commenced to foreclose the lien as against the respondent, Davis, within the life of the lien. The statute (Rem. & Bal. Code, § 1138) provides that: 'No lien created by this chapter binds the property subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such lien; or, if credit be given, then eight calendar months after the expiration of such credit. * * *' Since the lien expires by force of the statute, unless action be commenced within the statutory time, it is necessary to the pleading and proof of a valid lien that the complaint allege and evidence show that the work was done or materials furnished within that time, or the action cannot be maintained. This necessarily results from the wording of the statute, as construed by this court in a number of decisions. Rees v. Wilson, 50 Wash. 339, 97 P. 245; Northwest Bridge Co. v. Tacoma Shipbuilding Co., 36 Wash. 333, 78 P. 996; Peterson v. Dillon, 27 Wash. 78, 67 P. 397; Powell v. Nolan, 27 Wash. 318, 67 P. 712, 68 P. 389.

It is the manifest purpose of this statute to require the claimant to bring suit to establish his lien while the evidence upon which it rests is sufficiently recent to enable any party interested to successfully contest it, if the facts do not warrant the lien. The claimant must accord this opportunity within the time limited, or lose his lien. It is equally manifest that this right of contest is as valuable, and should be as available, to a mortgagee as to the owner. A mortgagee has something more than a mere right to redeem as against an antecedent lien. He has a right to contest its validity or assail its priority, if the evidence warrants either defense. He is entitled to his day in court upon these matters within the period fixed by the statute. In this respect, there is no valid distinction between necessary parties and proper parties. Union Nat. Savings & Loan Ass'n v. Helberg, 152 Ind. 139, 51 N.E. 916.

It follows of necessity that any one interested, whether as owner, mortgagee, lien claimant, or otherwise, any one who may defend against the lien, or show by competent evidence that it is not a lien as against his interest, has the right to invoke the statute, if the action be not commenced as against him within the statutory period. So read the better-considered authorities in construing similar statutory provisions. 'As to each defendant in an action, the action is commenced and is pending only from the time of service of the summons on him, or of his appearance without service; and, where each may object that the action was not commenced within the time limited by statute, its commencement as to his objection is to be determined by the time of service on him, and not by the time of service on some other defendant. This is a rule applicable to every action, and applies as well to actions to enforce mechanics' liens as to any others. And any one who may defend against such a lien, who may show that for any reason it is not a lien as against his interest, may object that the lien had expired, or the remedy upon it been lost by lapse of time, before the action was commenced against him.' Smith v. Hurd, 50 Minn. 503, 52 N.W. 922, 36 Am. St. Rep. 661. 'But counsel for appellee contend that, however true it may be that the lien of the lumber company was prior to that of the mortgagee at the time of the foreclosure of the former, yet such priority could last only during the life of the mechanic's lien. This, we think, must be admitted. The statute (section 7259, Rev. St. 1894; section 5297, Rev. St. 1881; section 5297, Horner's Rev. St. 1897) gives one year from the time when notice is filed in the recorder's office, or, if a credit is given, one year from the expiration of such credit, during which time suit may be brought for the enforcement of a mechanic's lien; and it is there expressly provided that, 'if said lien shall not be enforced within the time prescribed by this section, the same shall be null and void.' If the lien in this case had not been foreclosed within the year given by the statute, it is clear that it would have been void as to all persons concerned, including the mortgagee.

But while the lien was duly foreclosed as against the owner of the property, yet, as we have seen, the appellee, as mortgagee, not having been made a party to the action, its rights were in no manner affected thereby; that is, appellee's mortgage stands just the same as it would have stood if the mechanic's lien had not been foreclosed within the time prescribed by the statute. In other words, the year given by statute having expired without a foreclosure of the lien, as against the mortgage, the lien itself and the judgment based thereon must be, as to such mortgage, absolutely void. Equity cannot, as in the case of mortgages, maintain the senior lien on foot after the expiration of the year, when the statute declares it shall be void. By its foreclosure, the lienholder, not having made the mortgagee a party, simply stepped into the shoes of the owner of the property; and, as such owner could not question the right of the mortgagee to foreclose against the property, neither can the lienholder now...