Johnson v. Puritan Mining & Milling Co.

• Citation: 47 P. 337,19 Mont. 30
• Parties: JOHNSON v. PURITAN MINING & MILLING CO. et al.
• Decision Date: 21 December 1896
• Court: United States State Supreme Court of Montana

47 P. 337

19 Mont. 30

JOHNSON v. PURITAN MINING & MILLING CO. et al.

Supreme Court of Montana

December 21, 1896

Appeal from district court, Granite county; Theo Brantley, Judge.

Action by Levi C. Johnson against the Puritan Mining & Milling Company and others to enforce a mechanic's lien. From the judgment, plaintiff and defendant James A. Murray both appeal. Reversed on defendant's appeal, and affirmed on plaintiff's appeal.

Levi C Johnson, plaintiff in this action, alleged 57 causes of action upon liens for materials furnished to the Puritan Mining & Milling Company, defendant, or for labor performed upon the mines of said company. The times within which the materials were furnished and the labor performed in all of the causes of action set forth are between September, 1893 and March, 1894. The plaintiff prayed for judgment against the Puritan Mining & Milling Company, and that the same be declared a lien on said mining claims, and that they be sold to satisfy the judgment. Defendants Hines and wife, Lynch and the executor of Mary Minuse answered, and denied the several causes of action set up in plaintiff's complaint and pleaded that they were the owners of a mortgage made to them upon the mining claims of the Puritan Mining & Milling Company on May 21, 1892, to secure certain debts of the corporation. The defendant King also claims to be the owner of a mortgage upon the same mining claims, executed on May 15, 1893. King's mortgage recognizes the former one to Hines, Lynch, et al., so there is no conflict between the interests of these mortgagees. The contention of the mortgagees was that, by virtue of the mortgages, their liens were prior to the plaintiff's. The defendant Murray claimed a one fifth interest in the mining claims of the Puritan Mining & Milling Company by reason of his being the judgment creditor of one John Ullery, the predecessor in interest of the defendant Puritan Mining & Milling Company. He pleaded that his judgment lien existed by virtue of a judgment obtained in a suit of Murray against Ullery, where in he recovered judgment in December, 1887, against Ullery, for the sum of $2,062.81, together with interest and costs, and that on June 29, 1893, under his execution issued upon said judgment, the sheriff sold a onefifth interest in the mining claims involved in this suit, to him (Murray), and thereafter, on December 30, 1893, the sheriff executed to him a sheriff's deed. By reason of these facts, Murray asserted that his interest in said mining claims was prior and superior to plaintiff's lien. The plaintiff filed no replication to the answers of the mortgagees, but did reply to Murray's answer, denying the averments of the same. Upon the trial it was agreed by all parties that the materials were furnished, and the labor was performed, as alleged in the complaint. Murray then offered in evidence the judgment roll in the case of Murray against Ullery, filed December 7, 1887, the motion and affidavit for execution, the execution issued on said judgment May 1, 1893, and the deed from the sheriff to J. A. Murray, conveying to Murray the interest of Ullery in the mining claims described in the complaint, filed for record January 4, 1894. The plaintiff objected to the admission of the judgment roll, motion, execution, and sheriff's deed on the ground that the complaint in said judgment roll was not verified, and because it appeared from the papers introduced that J. A. Murray was not the owner of said judgment against Ullery at the time the motion and affidavit for execution were made and filed. The court sustained the plaintiff's objection. Judgment was thereafter rendered in favor of plaintiff for $8,134.04, and costs, including attorney's fees, which said sums were adjudged to be liens upon the Puritan and Silver Star mining claims, the properties of the Puritan Mining & Milling Company; but the court decreed that the defendant mortgagees, by virtue of their mortgages, had prior and superior liens to those of plaintiff. It was also decreed that the defendant Murray had no lien, and could take nothing of the action.

H. R. Whitehill, for appellants.

Smith & Word, Durfee & Brown, and McConnell & McConnell, for respondents.

HUNT J. (after stating the facts).

The only question to consider on the plaintiff's appeal is the specific error that the court ought not to have decreed the mortgage liens of the defendants to be superior to the liens of the plaintiff for materials furnished and labor done upon the mining claims of the Puritan Mining & Milling Company. Section 1370, div. 5, of the Compiled Statutes of 1887 gives a lien to every laborer or other person who does any work and labor upon, or furnishes any material for, any mining claim, quartz lode, building, erection, etc. Section 1374 provides that the lien given by section 1370 shall extend to the lot or land upon which any such building, improvement, or structure as may be referred to in the aforesaid section is situated, and provides, further, that the liens for work or labor done, or material furnished, as specified in the chapter of the statutes referring to liens, shall be prior to, and have precedence over, any mortgage, incumbrance, or other lien made subsequent to the commencement of work on any contract for the erection of such building, structure, or other improvement. Section 1375 declares that any such lien shall extend to all the right, title, and interest owned in the land by the owner or proprietor of the building, erection, or other improvement for whose immediate benefit the labor was done or the materials were furnished. Section 1376 provides that such liens or work "shall attach to the buildings, or improvements or erections for which they were furnished, or the work was done, in preference to any prior lien, or incumbrance or mortgage upon the land upon which said buildings, erections or improvements have been erected or put; and any person enforcing such lien may have such building, erection or improvement sold under execution and the purchaser may remove the same within a reasonable time thereafter."

As we must be governed by the foregoing statutes, we shall be careful not to extend the law beyond the expressed intent of the legislature. Granting that section 1370 is applicable to mining claims, still we cannot find that it or any other statute gives precedence to liens, such as are involved in this action, upon the land upon which the improvements have been made, over liens created by mortgages duly executed before the commencement of the work. The statute does make such liens preferred to any prior lien upon the land by attaching them to the buildings, erections, or improvements for which the labor and materials were furnished, but clearly goes no further. We find no warrant in the language used to imply that it extends such lien to the land itself, while, as conclusive evidence that the construction we put upon the statute is accurate, it is provided that the person enforcing the lien may have "such building, erection or improvement sold under execution and the purchaser may remove the same within a reasonable time thereafter." We are cited by the appellant to the statutes of Iowa, which are substantially like those that obtained in Montana when plaintiff's cause of action accured. But we find that the United States supreme court, in Brooks v. Railway Co., 101 U.S. 443, has construed the Iowa statutes similar to sections 1374, 1375, and 1376, cited above, and decided that a provision like section 1374, relating to the land on which the improvement is made, gives the laborer a paramount lien only as against other liens and incumbrances created subsequent to the commencement of work on any contract for the erection of such building, structure, or other improvement, and that those made prior to that time were unaffected by it. But the court goes on to say that a section of the Iowa Code like section 1376 of the Montana Code, made a different provision in regard to the lien on the building, erection, and improvement on the land, and thus summed up the statutory law: "The mechanic, therefore has a lien upon the land paramount to all rights accruing after the commencement of his work, and what he puts upon the land paramount to all other claims, whether created before or after that time. The decision of the courts of Iowa are to this effect, and the proposition is not disputed in argument here." This was the view taken of the statutes in Opera House Co. v. Maguire, 14 Mont. 558, 37 P. 607, where Justice Harwood, speaking for the court, said: "This provision [section 1376] subjects the improvements to the claim of the lienor to secure payment for the labor or material used in the erection of the improvement, by right superior to that of the prior mortgagee." See, also, Montana Lumber & Manuf'g Co. v. Obelisk Mining & Concentrating Co., 15 Mont. 24, 37 P. 897, and Murray v. Swanson, 18 Mont. 533 46 P. 441. The Montana statutes, in thus giving a lien upon a building or improvement separate from the land in preference to all prior liens upon the land, and by permitting the enforcement of such a lien by sale and removal of the building or improvement, seem to wipe out the common-law rule that buildings attached to the real estate are part o the real estate, not to be severed without permission of prior mortgagees of the land. Commenting upon such statutes, Jones, Liens, § 1373, says: "A lien is given, not on the materials as such, but on the buildings or improvements in the construction of which the materials are used. The operation of the statute, in case there is a prior mortgage of the land, is to dissever the improvements from the realty by giving a superior lien on such improvements, and conferring on the purchaser the right...