Ferguson Lumber Company v. Scriber

• Decision Date: 11 February 1924
• Docket Number: 156
• Parties: FERGUSON LUMBER COMPANY v. SCRIBER
• Court: Arkansas Supreme Court

258 S.W. 353

162 Ark. 349

FERGUSON LUMBER COMPANY v. SCRIBER

No. 156

Supreme Court of Arkansas

February 11, 1924

Appeal from Benton Chancery Court; Ben F. McMahan, Chancellor reversed.

Decree reversed and cause remanded.

Duty & Duty, for appellant.

Appellant was entitled to a lien on the entire lot on which the building was located. C. & M. Digest, 6906. The description of the land in the affidavit was sufficient. 90 Ark. 340. A substantial compliance with the statute is sufficient. 119 Ark. 43; 56 Ark. 544; 90 Ark. 108; 107 Ark. 245; 116 Ark. 44; 124 Ky. 251; 14 Ann. Cas. 688; 24 Pa.St. 507; 14 Wyo. 455; 96 Ala. 346; 13 Ind.App. 432; 77 Neb. 833. The lien when filed dates back to the time of furnishing the material. 32 Ark 59; 56 Ark. 640; 71 Ark. 35.

Sullins & Ivie, for appellee.

The mortgage was filed before any claim of lien was filed by appellant and is therefore prior to his claim. 178 S.W. 406; 244 S.W. 348. The purchase of a small amount is not sufficient to extend the time for filing the claim for lien. 235 S.W. 416.

OPINION

SMITH, J.

This is a suit to enforce a materialman's lien on a lot in the city of Rogers, Arkansas, which arose on the following facts On March 15, 1920, Scriber purchased and received a deed from Hudspeth, conveying the south 22 feet of lot 3, block 12, in the original town of Rogers, and on March 17, 1920, he executed a mortgage thereon, which was filed for record March 26, 1920. At the time of the execution of the deed from Hudspeth to Scriber, Hudspeth owned the entire lot 3, which was an ordinary town lot 50 by 140 feet, and on April 16, 1920, Hudspeth conveyed to Scriber the remaining 28 feet of the lot.

On September 22, 1921, Scriber conveyed to Clouston, by warranty deed, 25 feet off the north side of the lot, and by subsequent deeds conveyed the remainder of the lot to Clouston, who himself subsequently conveyed to Cady the north 28 feet of the lot.

On March 24, 1920, Scriber contracted to purchase from the Ferguson Lumber Company lumber and material with which to improve and remodel a galvanized iron barn situated on said lot 3, to be used as a veterinary hospital. These materials were furnished over a period of time from March 24, 1920, to June 22, 1920, the last item being some cement furnished to put around a flue which was leaking, and this item of cement is the only item on the account which was furnished within ninety days of the time when the claim for a lien was filed with the clerk of the circuit court.

On September 9, 1920, which was within ninety days of the date of the last item furnished, the lumber company filed with the clerk of the circuit court a verified account of the articles furnished, as required by § 6922, C. & M. Digest, and a lien was claimed on the north 22 feet of the lot. On December 6, 1921, the lumber company filed a suit to foreclose the lien against the barn and the lot on which it was located.

It appears that the barn was not located on the north side of the lot, but was, in fact, located on the south side, and the court took the view that, inasmuch as Scriber had acquired title to the respective portions of the lot by separate conveyances, they should be treated as separate lots, and, as the notice described the barn as being on a portion of the lot which was, in fact, vacant, the court held that the land had not been correctly described.

Cady was made party defendant, and it appears that he had actual knowledge of the facts set out above, but he assumed there was no lien on the south part of the lot, because it was not described in the account and demand for a lien filed with the clerk, and the court so found, and refused to decree that the lumber company had a lien on the land on which the barn was located, but did render judgment against Scriber for the amount sued for, and the lumber company has appealed.

We think the court was in error in holding the description insufficient. It is true Scriber owned only the south 22 feet of the lot when he contracted for the purchase of the materials, but he became the owner of the entire lot, as shown above. The lot was only 50 by 140 feet, and there was no other barn or other building on the north part of it. There appears to be no reasonable doubt that the plaintiff lumber company was attempting to claim a lien on the land on which the building stood. The building appears to have extended from the east end to the west end of the lot, and to have occupied all of the south 22 feet thereof. It would, no doubt, have been better to have described the improvement as being on lot 3, without the unnecessary particularity employed. Sections 6906 and 6908, C. M. Digest. But we do not think the mistake made defeated the claim for a lien.

The question of the sufficiency of the description to be employed to perfect the claim of a materialman's lien has been several times considered by this court, a very recent case being that of Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S.W. 901. There materials had been furnished to repair buildings on a plantation, and the land upon which it was asked that a lien be declared was described as consisting of 1,380 acres in Jefferson County, Arkansas. We held that this description did not describe any particular tract or acre on which the buildings were situated, nor any particular building or buildings upon which the lien was sought to be established. It was held--but not by a unanimous vote--that this description was not sufficient. In the opinion it was said: "The majority does not mean to say that either the acre of land on which the lien is sought, or the building thereon, must necessarily be described in any particular form. All that is essential is that the acre of land or the building be designated in such language as will afford information concerning the situation of the property to be charged with the lien. Of course, if the building be described so as to properly designate its location, this is sufficient, for the statute itself fixes the quantity of land to be charged."

The authorities were reviewed in the case of Barnett Bros. v. Wright, 116 Ark. 44, 172 S.W. 254, and we there said: "Mr. Phillips, in his work on Mechanics' Liens (3 ed. § 379), discussing the rules of law established by decisions of court with reference to the essential of a description of property sought to be charged with a mechanic's lien, says: 'Among those laid down, and probably the best rule to...