Eccles Lumber Co. v. Martin

• Decision Date: 14 November 1906
• Docket Number: 1711
• Citation: 87 P. 713,31 Utah 241
• Court: Utah Supreme Court
• Parties: ECCLES LUMBER CO. v. MARTIN et al

87 P. 713

31 Utah 241

ECCLES LUMBER CO. v. MARTIN et al

No. 1711

Supreme Court of Utah

November 14, 1906

APPEAL from District Court, Weber County; J. A. Howell, Judge.

Action by the Eccles Lumber Company against Ann H. Martin, executrix of James E. Horrocks, deceased, and others. From a judgment of dismissal, plaintiff appeals.

REVERSED AND REMANDED.

T. D Skeen for appellant.

APPELLANT'S POINTS.

The authorities are almost uniform in holding that where work is done or material furnished in the erection of two or more houses under an entire contract upon one lot or parcel of land owned by one person. A single lien attaches upon the whole estate for the whole amount claimed and no apportionment is necessary. (Wall v. Robinson, 115 Mass. 429; Lyon v. Logan, 68 Texas 521; Chadbourn v. Building Assn., 71 N.C. 448; Marston v. Kenyon, 44 Conn. 350; Batchelder v Rand, 117 Mass. 176; Paine v. Bonney, 4 E. D. Smith 750; Phillips v. Gilbert, 101 U.S. 721; Morgan v. Chase, 52 N.Y. 346; Carpenter v Leonard, 5 Minn. 119; Orr v. Insurance Co., 86 Ill. 260; Hall v. Sheehan, 69 N.Y. 618; Brick Co. v. Spilman, 76 Md. 337; Williamette Co. v. Shea, 32 P. 759; Lax v. Peterson, 42 Minn. 221; Lumber Co. v. Newton, 72 Iowa 90; Doolittle v. Plenz, 16 Neb. 123, 20 N.W. 116; Fullerton v. Leonard [S. D.], 52 N.W. 325; 2 Jones on Liens, sec. 1313; Wilcox v. Woodruff, 17 L.R.A. 314, 316; Quinby v. Durgin, 148 Mass. 104; Carr v. Hooper [Kan.], 29 P. 398; Brick Co. v. Dunkerly, 85 Md. 199, 36 A. 761; Worthley v. Emerson, 116 Mass. 374; Williams v. Judd-Well Co. [Iowa], 59 N.W. 271; Sash & Door Co. v. Case [Neb.], 60 N.W. 576; Lehmer v. Horton [Neb.], 93 N.W. 964; Badger Lumber Co. v. Holmes [Neb.], 62 N.W. 446.)

T. N. Kimball for respondents.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This action was commenced to foreclose a mechanic's lien; judgment of dismissal being entered upon a demurrer to the complaint. With the hope of assisting to a better understanding of the views hereinafter expressed, we will, in our own way, make a somewhat extended statement of the facts contained in the complaint, which, after stating the corporate existence of the appellant, is, in substance, as follows:

That James E. Horrocks, during his lifetime, and at all times mentioned in the complaint, was the owner in fee of certain real estate in Ogden City, Utah described as follows: Part of lot twenty-seven (27), block four (4), of South Ogden survey addition to Ogden City, Weber county, Utah to wit, beginning at the northwest corner of said lot twenty-seven (27); thence east 162 feet; thence south 132 feet; thence west 30 feet; thence north 66 feet, thence west 132 feet; thence north 66 feet to the place of beginning. That on or about the 1st day of September, 1904, said Horrocks entered into a written contract with respondent Peterson, whereby said Peterson agreed to build for said Horrocks two frame dwelling houses upon the real estate above described, and to furnish and provide all of the lumber, building material, and labor necessary to complete said houses, and to complete the same on or before the 1st day of November, 1904, all for the sum of $ 2,750, to be paid by said Horrocks to said Peterson; payment to be made in installments as the work on said houses progressed, and the last payment of $ 500 was to be made when said houses were fully completed. That thereafter, on the 6th day of September, 1904, said Peterson, by a written contract, sublet the construction of said houses, together with the furnishing of certain specified material, to the respondent Fred. Howard. Said Howard agreed to complete said houses within thirty-six working days from said date, and to receive the sum of $ 1,575 for what he agreed to do, payments to be made from time to time, the last payment of $ 775 to be made when said houses were completed. That thereafter, on the 19th day of September, 1904, said Howard entered into a contract with appellant, whereby appellant agreed to furnish said Howard with lumber and other specified material necessary to complete said houses. That in pursuance of said agreement, and with the assent and approval of said Peterson, the original contractor, and said Horrocks, the owner of the premises above described, appellant, between the 19th day of September and the 25th day of October, 1904, sold, furnished, and delivered said building material to said Howard upon said premises to be and which was actually used in the construction of said houses, amounting in all, according to the prices agreed upon, and after deducting all credits, to the sum of $ 710.48. That said contracts were entire, and appellant is unable to state the amount due or the sum paid on each of said houses separately. That the appellant furnished all the lumber and building material required to complete said houses. That the same was to be paid for on the 1st day of the month succeeding the date of delivery. That no payments were made for the construction work of said houses before the first material was actually furnished by the appellant, except the sum of $ 600. That within forty days from the date of delivery of the last material, the appellant filed with the county recorder of Weber county, and caused to be recorded, a notice of intention to claim, and did claim, a mechanic's lien upon the real estate above described. The notice so filed and recorded was duly verified, and in detail complied with the requirements of section 1386, Revised Statutes 1898, all of which is stated in the complaint. That said Horrocks died on the 20th day of March, 1905, leaving a last will, wherein the respondent Ann H. Martin was named as executrix, which will was thereafter on the 29th day of June, 1905, duly admitted to probate, and that letters testamentary were duly issued to said Ann H. Martin, and that she is the duly qualified executrix of the last will of said James E. Horrocks, deceased. That the appellant duly presented its claim for the amount claimed, with interest and costs, to said executrix for allowance against said estate. That the same was disallowed and rejected by her, and she refuses to pay the same or any part thereof. A copy of the notice of intention to claim a lien is attached to said complaint, and made a part thereof. The notice sets forth in detail all matters required by section 1386, Revised Statutes 1898, but fails to state the amount due to the claimant on each building separately.

Upon substantially the foregoing facts, the appellant prayed judgment for the amount of its claim, to foreclose said lien, for the sale of the property, and for general relief. To this complaint the respondent Ann H. Martin, as executrix of the said last will, interposed a general demurrer upon the sole ground that said complaint does not state facts sufficient to constitute a cause of action either against her or the estate of the deceased and that the facts stated are insufficient to entitle appellant to the relief prayed for. The trial court sustained this demurrer, and the appellant, refusing to further amend the complaint, but electing to stand thereon, judgment dismissing the action and for costs was directed to be rendered against the appellant, from which judgment this appeal is prosecuted.

The only question presented by this record therefore is, did the court err in sustaining said demurrer and in entering judgment dismissing the action as above stated? The trial court held that the notice of intention to claim a lien was insufficient, for the reason that the amount due on each one of the two houses was not separately stated, and that therefore there was no lien, and hence the judgment dismissing the action. In order to determine the correctness of the court's ruling, it becomes necessary to analyze and construe sections 1386 and 1387, c. 1, 39, Revised Statutes 1898, entitled "Mechanics' Liens." This chapter is composed of 28 sections consecutively numbered from 1373 to 1400. In those sections is contained an entire system or scheme respecting the creation of mechanics' liens in favor of persons who furnish any material, or perform any labor, or render any skill or service for any improvements on land. By the various amendments to the original law from time to time, and as the same has been construed by this and other courts under similar statutes, a mechanic's lien attaches to the land, and, unless the person against whom the claim for a mechanic's lien is made has some interest or estate in the land upon which the improvement is made, no lien attaches to the improvement as such; further, that a contract express or implied must have been made with the owner of the land or his authorized agent in order to successfully initiate a lien. (Morrison, Merril & Co. v. Clark, 20 Utah 432, 59 P. 235, 77 Am. St. Rep. 924; Early v. Burt, 68 Iowa 716, 28 N.W. 35; Huff v. Jolly, 41 Kan. 537, 21 P. 646; Fetter v. Wilson, 51 Ky. 90; Wager v. Briscoe, 38 Mich. 587, 595.) The case of Sanford v. Kunkel, 30 Utah 379, 85 P. 363, in no way departs from the doctrine that in order to acquire a lien an interest in the real estate upon which the improvements are made is necessary. That case is based upon the sound equitable doctrine that where the law has given a right to one person it cannot be destroyed by the wrongful act of another.

Having thus reached the conclusion that under our present statute a mechanic's lien can only be acquired on land, and that the buildings or improvements are to be taken as appurtenant merely, we will proceed to an examination of our statutes to determine whether the lien in question is void or valid. Section 1386, in which are contained the matters which must be stated in a notice of intention to claim a lien, reads as follows:

"Every...