J. J. Howe & Co. v. Smith

• Decision Date: 26 April 1897
• Citation: 71 N.W. 552,6 N.D. 432
• Court: North Dakota Supreme Court

71 N.W. 552

6 N.D. 432

J. J. HOWE & Co. v. W. G. SMITH, ET AL

Supreme Court of North Dakota

April 26, 1897

Appeal from District Court, Cass County; McConnell, J.

Action by J. J. Howe and A. B. Barton, copartners as J. J. Howe & Co., against W. G. Smith and N. M. Stimmel. Judgment for defendants, and plaintiffs appeal.

Reversed.

Judgment of the District Court reversed. The appellants recovered costs and disbursements in both courts.

John E Greene, for appellants.

Smith Stimmel, and Pollock & Scott, for respondents.

OPINION

CORLISS, C. J.

Upon this appeal a single problem presents itself for solution. The action was instituted to foreclose a mechanic's lien on real property. The sole defense is that the affidavit for lien is fatally defective, in that it does not contain "a correct description" of the property to be charged with the lien, as required by the statute. Rev. Codes, § 4791. The land involved is situated in the City of Fargo, in this state. Its accurate description is "lot 5, block 32, Keeny & Devitt's Second addition to the City of Fargo." It is described this way in the lien with the exception of the word "Second." That is omitted from the description. It appears that there are two Keeny & Devitt's additions to the City of Fargo, one being described as Keeny & Devitt's addition, and the other as Keeny & Devitt's Second addition. In Keeny & Devitt's addition there is found no block 32. The numbers of the blocks in that addition stop at No. 16. In Keeny & Devitt's Second addition the numbering of the blocks begins at 17, Nos. 1 to 16, both inclusive, being not found in that addition at all; and the numbers run from 17 to 41, both inclusive. It is apparent, therefore, that unless the description contained in the affidavit for a lien relates to lot 5, in block 32, Keeny & Devitt's Second addition, it describes no land whatever. The case before us is not a case in which the description which does not accurately describe the land sought to be charged with the lien does in fact describe another piece of real property with technical exactness. In such a case there is no ambiguity to be cleared up by a resort to extrinsic facts. It is a case where the lienor has precluded all possibility of his claim that he intended to describe the land he is seeking to subject to a lien, because he has explicitly described another parcel of real estate, and because no reformation of the description is in such cases permitted. When one lot is designated in the lien in terms which point it out with absolute precision, no room is left to inquire whether another lot was intended. If, in this case, it appeared that there was in fact in Keeny & Devitt's original addition a block numbering 32, containing a lot numbered 5, we would be compelled to adjudge the description insufficient. This is the utmost scope of the decision of the court in Lumber Co. v. Davie, (Mont.) 13 Mont. 76, 32 P. 282, so much relied on by counsel for respondent. In that case lot numbered 14 was described in the lien, and the property sought to be charged with the lien was lot 13.

It has for many years been laid up among the elementary principles of the law relating to mechanics' liens that technical accuracy of description in the instrument filed to perfect the lien is not required. Such instruments are often prepared by persons possessing no legal skill, and the courts, out of indulgence to their want of the requisite knowledge, have adopted the rule that no amount of looseness in the description of the premises intended to be affected will vitiate the lien, provided the property is so designated therein that one familiar with the locality can identify the land with reasonable certainty. Phillips in his work on Mechanic's Liens, states, in § 379, the rule in the following language: "That if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanic's claim merely for loose description, as the acts generally contemplate that the claimants should prepare their papers; and it is not necessary that the description should be either full or precise. It is enough that the description points out and indicates the premises, so that by applying it to the land, it can be found and identified." In Tulloch v. Rogers, (Minn.) 52 Minn. 114, 53 N.W. 1063, the court said: "It has been held by this court, following the well-settled rule elsewhere, that, if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of other premises, it will be sufficient, and that it is enough that the description as found in the statement points out and indicates the premises so that, by applying it to the land, it can be found and identified; and also that less certainty of description is required in the case of affidavits for liens than in deeds of conveyance." In Bassett v. Menage, 53 N.W. 1064, the court observed that "the lien statement is a notice merely of the claim of the material man or mechanic, and while, in substance, it must comply with the requirements of the statute, the same fullness or precision is not required as in the case of a conveyance or judgment. If there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient." In Northwestern C. & C. P. Co., v. Norwegian, etc., Seminary, (Minn.) 43 Minn. 449, 45 N.W. 868, the court said: "The affidavit for a lien is neither a process, pleading, judgment, nor conveyance, but merely a notice of the claim of the mechanic or material man; and while it must undoubtedly, in substance, comply with the requirements of the statute, yet the same fullness or preciseness is not required as in the case of a conveyance or judgment. The general rule as to the sufficiency of such notices is that, if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. It is enough that the description points out and indicates the premises so that, by applying it to the land, it can be found and identified." In De Witt v. Smith, 63 Mo. 263, the court states the same rule in the following language: "As to what will be regarded as a sufficient description to sustain a mechanic's lien, the general rule seems now to be that, if there appear...