Harrisburg Lumber Co. v. Washburn

• Decision Date: 16 March 1896
• Citation: 44 P. 390,29 Or. 150
• Parties: HARRISBURG LUMBER CO. v. WASHBURN et al.
• Court: Oregon Supreme Court

44 P. 390

29 Or. 150

HARRISBURG LUMBER CO. v. WASHBURN et al.

Supreme Court of Oregon

March 16, 1896

Appeal from circuit court, Lane county; J.C. Fullerton, Judge.

Action by the Harrisburg Lumber Company against C.W. Washburn and others, church trustees, a mechanic's lien claimant, and a mortgagee, to foreclose a mechanic's lien. From a judgment denying their liens, plaintiff and defendant lien claimant appeal. Reversed.

This is a suit by E.E. Upmeyer et al., as partners under the firm name of the Harrisburg Lumber Company, against C.W. Washburn et al., as trustees of the Methodist Episcopal Church of Junction City, the Sugar Pine Door & Lumber Company, a corporation, and the board of church extension of the Methodist Episcopal Church, a corporation, to foreclose an alleged lumber merchant's lien on certain real property in said city. The facts are that on August 10, 1892, the said trustees entered into a contract with one E. Bashaw, by the terms of which he undertook to furnish the necessary materials, erect a church building, and supply the pews therefor, in conformity with the plans and specifications thereof, and executed a bond, with sureties, for the faithful performance of the conditions of the contract; that the Harrisburg Lumber Company delivered to Bashaw lumber and material to be used in the building, of the reasonable value of $571.86, and the Sugar Pine Door & Lumber Company also delivered to him building material and pews to be used therein of the reasonable value of $1,248.11; that on October 17th of that year, and after the construction of said church had been commenced, the said trustees executed to the said board of church extension a mortgage upon the real property on which the church was built, to secure the payment of $500 that the amount to be paid to the contractor was about $3,500, and, after having received from the trustees $2,184 Bashaw left the state, without having completed the building or paid for the said lumber and other material; that on January 18, 1893, the Harrisburg Lumber Company, and on the 2d day of the following month the Sugar Pine Door & Lumber Company, filed liens against the church building to secure the payment of $571.86 and $1,258.11, respectively; that, the plaintiffs having commenced this suit, the Sugar Pine Door &amp Lumber Company, answering, alleged that it had a lien on the property, which it prayed might be foreclosed, and the said board of church extension claimed that its mortgage was prior to each of said liens, while the trustees denied the existence of both. Replies having put in issue the allegations contained in the several answers, a trial was had, and the court, having found that the lumber merchant's liens were invalid, rendered a decree dismissing the suit, from which the lien claimants appeal.

George B. Dorris and H.C. Watson, for appellants.

J.J Walton and A.C. Woodcock, for respondents.

MOORE, J. (after stating the facts).

It is contended on behalf of the lien claimants that the court erred in its findings and decree, while the trustees in support of the decree, insist: (1) That the liens were sought to be enforced against a building used by a religious society for public worship, and that such property is exempt therefrom. (2) That the real property on which the building is erected was "conveyed to the said trustees and their successors in office in trust for the use and benefit of the ministry and membership of the Methodist Episcopal Church of the United States of America, subject to the discipline, usage, and ministerial appointments of said church, as from time to time authorized and declared, and, if sold, the proceeds shall be disposed of and used in accordance with the provisions of said discipline"; that the trust being set forth in said deed, and the same being of record, the trustees had no authority to create a debt against the property, by which it could be made subject to a lien, without the consent of the grantor, and that, the deed being of record, the lien claimants had notice thereof. (3) That E. Bashaw, the contractor, was the agent of the Harrisburg Lumber Company, and, having paid him on his express demand therefor, they have discharged the claim of said company. (4) That a part of the lumber so furnished by said company, and for which it claims a lien, was used in building a sidewalk around the lots belonging to the church, thus rendering the lien invalid. (5) That the lien notice of the Sugar Pine Door & Lumber Company misdescribes the premises on which the church is erected. (6) That its lien was not filed within the time limited by law. And (7) that the pews furnished by it were not made according to the plans and specifications thereof.

1. Section 3669, Hill's Ann.Laws Or., so far as it applies to the case at bar, provides that "Every *** lumber merchant *** furnishing material *** to be used in the construction *** of any building *** shall have a lien upon the same for the *** material furnished at the instance of the owner of the building *** or his agent." "A church," says Mr. Phillips in his work on Mechanics' Liens (3d Ed. § 171), "is a 'building,' within the mechanic's lien law." In Presbyterian Church v. Allison, 10 Pa.St. 413, the court holds that a church is a "building," in the sense contemplated by the statute, and that the exemption by the legislature of all churches from taxation did not exempt them from the mechanic's lien law, for if it had done so the provision would have appeared in the statute, and say: "On the whole, we perceive no reason, either religious, moral, or civil, why the mechanic's lien law does not apply to the erection of a church." It is conceded that property exempt by law from seizure and sale under an execution must also be exempt from the mechanic's lien law, unless the statute conferring the remedy expressly provides that such property was meant to be included within its operation. Phil. Mech. Liens, § 179. Our statute exempts from execution "the seat or pew occupied by a householder or his family in a place of public worship." Hill's Ann.Laws Or. § 282, subd. 5. This exemption is granted upon the theory that the householder is a tenant, and has an estate in a designated pew; but such exemption, being personal, can be maintained only by a householder, and hence cannot be claimed by the trustees on behalf of the society. A house of public worship occupied by a religious society being a "building," and the statute not having exempted it from mechanics' liens, or seizure and sale under execution, it follows that a church is subject to a lien for labor performed upon or material furnished to be used in its construction, alteration, or repair. Gortemiller v. Rosengarn, 103 Ind. 414, 2 N.E. 829; Jones v. Trustees, 30 La.Ann. 711.

2. The deed having recited that the premises were conveyed to the trustees, and their successors in office, in trust for a specific use, the question is presented whether they had such an estate therein as would authorize them, with the consent of the society, to create a debt which might subject the property to a statutory lien that could be foreclosed without making the grantor a party to the proceedings. In its discussion, counsel assumes that the grantor had an equitable estate in the premises that could not be defeated by the enforcement of a mechanic's lien. But an examination of the provision referred to clearly shows that he had conveyed his whole estate therein, and in case the premises should be sold the proceeds arising therefrom are to be disposed of and used in accordance with the discipline of the Methodist Episcopal Church. The owners of the equitable estate in the premises are the members of the society of the Methodist Episcopal Church, for whose benefit the trustees hold the legal title; and, in the absence of any claim to the contrary, it will be presumed that the trustees caused the church to be erected by and with the consent of the members of the society. "No case," says Sherwood, J., in Bushong v. Taylor, 82 Mo. 660, "appears to have been found where the point of the power of trustees to charge the church property has been directly passed upon; but several instances have occurred where such powers have passed unchallenged, and formed the basis of judgments in courts of last resort." Further in the opinion the same learned justice says: "And, looking to the character of the organization and nature of the government of the M.E. Church, it would seem clear that the trustees are the agents of the aggregate body of members,--at least, so far as is necessary to upholding the relief sought for in this case,--and that any member who unites with the association, under and subject to the discipline, thereby, of necessity, gives to such trustees authority to act for him, within the meaning of the book of discipline, to the extent of his beneficial interest in the property owned by the association, and that in consequence of this any debt contracted by such trustees on account of the premises will be the debt of the members, so far as concerns their beneficial interest, and to the extent of such interest held by the trustees; and it cannot be tolerated that such an association could so convey its property as to place it beyond the reach of a court of equity enforcing the claims of its creditors." The trustees named in the deed are made parties defendant in this suit, and the grantor of the premises, having no estate therein, was not a necessary or proper party.

3. Was Bashaw the agent of the Harrisburg Lumber Company? The evidence upon this branch of the subject is quite conflicting; the plaintiffs positively denying that any such relationship ever existed, while the defendants show that Bashaw represented that he was such agent, and had authority to...