Gull River Lumber Company v. Briggs
| Decision Date | 16 November 1900 |
| Citation | 84 N.W. 349,9 N.D. 485 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County; Glaspell, J.
Action by the Gull River Lumber Company against R. H. Briggs. Judgment sustaining a demurrer to the complaint, and plaintiff appeals.
Affirmed.
Young & Combs, for appellant.
Complainant is not required to allege and prove the precise title of the party with whom he made the contract to the land, for the lien is enforced only upon such interest as he has in the premises. Miller v. Bergenthal, 20 Wis. 474, 7 N.W 356; Moritz v. Splitt, 55 Wis. 441, 13 N.W. 555; Jones on Liens, § 1592. The averments of a petition for a mechanic's lien, in regard to the interests of the defendant, are sufficient to sustain a decree against him if enough appears to disclose the rights of the parties and to admit all evidence bearing upon these rights. Henderson v. Connolly, 14 N.E. 1; Rice v. Hall, 41 Wis 453; Shaw v. Allen, 24 Wis. 563; Chisholm v Williams, 128 Ill. 115; Jones on Liens, § § 1591-1592. A mechanic's lien, for materials furnished may attach not only to the lien-hold estate, but to estates and interests of the most minute and transient character. Hathaway v. Davis, 5 P. 29; Phillips, Mech. Liens, § 19; Turney v. Saunders, 4 Scam. 527; Donaldson v. Holmes, 23 Ill. 85. The party in possession or occupancy of land upon which a structure, for his use and benefit, is erected is presumed to have such an interest therein as is chargeable with a mechanic's lien, and such presumption continues until the contrary is made to appear. Philips, Mech. Liens, § 187; McCulloch v. Caldwell, 5 Ark. 237; Dean v. Pyncheon, 3 Chand. (Wis.) 9. In an action to foreclose a lien for materials furnished the petition contained no allegation in the body thereof that the contract to furnish materials was with the owner, but the petition referred to the lien statement attached, which lien statement clearly disclosed the contract to furnish materials was with the owner. Held, that the petition sufficiently disclosed that the contract was with the owner. Jarvis, Etc. Co. v. Sutton, 26 P. 406. Notwithstanding the averment in the complaint that the state of North Dakota owned the land in fee, nevertheless the person with whom the contract for the purchase of material was made was, under the averment, the owner of the building constructed with said material; was also the purchaser and occupant of the land upon which it was situated. The interest of Haynes in the land was such as would be subject to the attachment of the lien. Haynes being in possession is presumed to be there rightfully. Mason v. Park, 3 Scam. 532; Davis v. Easley, 13 Ill. 192. The land may be subjected to sale, and whatever interest Haynes may have therein, be it more or less, will vest in the purchaser. Sweitzer v. Scyles, 3 Gil. 529; Talbot v. Chamberlain, 3 Paige 220; Dean v. Pyncheon, 3 Chand. 9; Jackson v. Garnsey, 16 Johns. 192; Jackson v. Parker, 9 Cow. 73; Jackson v. Graham, 3 Caines Cas. 189; Chambers v. Benoist, 25 Mo.App. 520; Jackson v. Towne, 4 Cow. 602; Steigleman v. McBride, 17 Ill. 299; McCullogh v. Caldwell, 5 Ark. 237. The complaint contains traversable allegations of all the essentials to entitle plaintiff to maintain and enforce its lien and it was not pregnable to demur. Howe v. Smith, 6 N.D. 432; Rush Owen Lumber Co. v. Fitch, 3 S.D. 213; Red River Lumber Co. v. Congregation, 7 N.D. 46; McCrea v. Craig, 23 Cal. 522; McCoy v. Quick, 30 Wis. 521; Miller v. Bergenthal, 50 Wis. 474; McFadden v. Stark, 58 Ark. 7; Cauddington v. Beebe, 29 N.J.L. 550. The intention of the statute, § § 4788-4794. Rev. Codes, is to give a lien upon both the land and the building, or either of them. The statute is remedial and the claim for lien being sufficient in substance it will be sustained. McCumber v. Bigelow, 126 Cal. 9; McGinty v. Morgan, 122 Cal. 103; Mahon v. Surerus, 9 N.D. 57, 81 N.W. 64. If the statute gives a lien to the material man upon both the land and the building, or either of them, then it is unnecessary to show that the person with whom the contract for the purchase of the materials was made had no legal interest in the land itself. A right to a lien upon the improvements may exist without any contract with the owner of the fee, but by contract with the owner of the improvements. Lane v. Snow, 66 Ia. 544, 24 N.W. 35; Jones on Liens, § 1250.
Lockerby & White, for respondent.
The notice for a mechanic's lien filed by appellant is void on its face. It recites that the contract has not been completed. Philips on Mech. Liens, 223; Roylance v. St. Louis Hotel Co., 15 P. 777; 20 P. 576; Seaton v. Chamberlain, 4 P. 89; Schwartz v. Knight, 16 P. 235; Catlin v. Douglas, 33 F. 569; Davis v. Bullard, 32 Kan. 234, 4 P. 75; Seaton v. Chamberlain, 32 Kan. 239, 4 P. 89; Crawford v. Blackman, 30 Kan. 527, 1 P. 136; 2 Jones on Liens, § 1430. The complaint is fatally defective in not alleging that Haynes had some estate or interest in the land upon which the building was erected. Peck v. Bridewell, 6 Mo.App. 451; Clarke v. Raymon, 27 Mich. 456; Shaw v. Allen, 24 Wis. 563; Monroe v. West, 12 Ia. 119; Thaxter v. Williams, 14 Pick. 49. The building becomes a part of the real estate as soon as it is attached to the land, and the building is all the debtor in such case could claim to own. The building could never be sold as the debtor's personal property, or levied upon as his real estate. 2 Jones on Liens, § 1247; Rabbit v. Condon, 27 N.J.L. 159; Wager v. Briscoe, 38 Mich. 587; Haynes v. Fessenden, 106 Mass. 228. The complaint, independent of the notice, must state a cause of action. Shaw v. Allen, 24 Wis. 563; Altman v. Siglinger, 2 S.D. 446.
Action to foreclose a mechanic's lien. A demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action was sustained, and plaintiff appeals. The lien is sought to be imposed upon the building only, and for materials that entered into its construction. The defendant is the vendee of the party by whom the building was erected. No personal judgment is claimed, or, under the complaint, could be recovered, in this case, against any one. Unless the complaint entitles plaintiff to the foreclosure of the lien claimed, it cannot be sustained for any purpose. To entitle a party to a lien for materials furnished to be used in the construction of a building, such materials must be furnished pursuant to a contract with the owner of the land upon which the building is situate. Such is the clear requirement of section 4788 Rev. Codes. The complaint in this case alleges that at the time such materials were furnished the state of North Dakota was, and ever since has been, the owner in fee of the land upon which the building is situated. No contract with the state is claimed, but it is alleged that the contract was made with one Haynes, defendant's vendor of the building. It is claimed that the complaint sufficiently shows that the building was erected for the immediate use and benefit of said Haynes, and that by reason of that fact, and for the purpose of the mechanic's lien law, he was the "owner" of the land, under section 4798, Rev. Codes. This section is identical with section 5483, Comp. Laws. In the case of Mahon v. Surerus, 9 N.D. 57, 81 N.W. 64, this court construed the latter section, and held that a contract made with one who had a homestead filing upon land would support a lien upon the building for materials used by such party in the construction of a house upon said land for his own use, notwithstanding the fact that under section 2296, Rev. St. U.S. the land could not be subjected to or sold under any such lien. This holding was based upon the fact that under section 5480, Comp. Laws, the plaintiff might, in every case, enforce his lien against the building without selling any interest whatever in the land upon which it stood. That feature of the statute as it appeared in the Compiled Laws has been materially changed by the statute as it appears in the Revised Codes. It is true that the language giving the lien as found in section 4788, Rev. Codes, is the same as the former law, and declares that the party shall have "a lien upon such building, erection or improvement and upon the land belonging to such owner on which the same is situated." In Mahon v. Surerus we held that this language imported two separate liens, one upon the building and one upon the land....
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