Kezartee v. Marks

• Decision Date: 02 January 1888
• Citation: 15 Or. 529,16 P. 407
• Parties: KEZARTEE v. MARKS et al.
• Court: Oregon Supreme Court

16 P. 407

15 Or. 529

KEZARTEE v. MARKS et al.

Supreme Court of Oregon

January 2, 1888

Appeal from circuit court, Douglas county.

Action by G.W. Kezartee to enforce three liens for materials furnished by himself, S. Hamilton, and L.C. Beardsley for the erection of a house owned by W.F. Owens on the land of Marks & Co., defendants. W.F. Owens having died after the filing of the suit, C.W. Johnson, his administrator, was substituted as a party defendant. Judgment for plaintiff, and defendants appeal.

J.C. Fullerton, for appellants.

J.W Hamilton, for respondent.

STRAHAN J.

This is a suit brought by the respondent to enforce three liens for materials alleged to have been furnished in the erection of a dwelling-house situated on the donation land claim No. 53, of John Leister, about one and one-half miles west of Roseburg and one of said claims also includes materials used in building a fence. It appears from the complaint that, at the time the materials were furnished and the liens filed, Marks & Co. owned the land where the house was erected, and that the same was in the possession of W.F. Owens, and that the work was performed and materials furnished under a contract with W.F. Owens; that on the twenty-fifth day of September 1886, said W.F. Owens died, and that the defendant Johnson is his administrator; and that the claims in the names of S. Hamilton and L.C. Beardsley were duly assigned to the plaintiff before the action was commenced; that said building was constructed and repaired with the consent of Marks & Co. The complaint then alleges facts showing substantial compliance with the law under which the liens were filed. Marks & Co. filed a separate answer, denying that the building was constructed or repaired with their knowledge or consent. Denies the assignment of Hamilton and Beardsley's claims to the plaintiff. The several allegations tending to show compliance with the statute are then denied. Alleges that plaintiff's (Hamilton's) claims did not contain a true or any statement of his demand after deducting all just credits and set-offs. Allege that said claims did not contain the name of the owner or reputed owner of the property sought to be charged, nor any description of the premises sought to be charged sufficient for identification, or any description of said property whatever; and that said claims are not verified. The like denials and allegations are then made respecting the claim of L.C. Beardsley. The answer of Johnson, the other defendant, is the same in all essential particulars, except that there is no denial that the work was performed and materials furnished with the knowledge and permission of Marks & Co. The case was referred, and the evidence taken in writing, and properly certified copies of the documentary evidence accompanies the transcript. The court below found in favor of the plaintiff as to each of said liens, and rendered a decree establishing the same against the building only, and not against the ground upon which it stands. From this decree the defendants have appealed.

There is no controversy as to the performance of the labor or the furnishing of the materials for the building. The appellants contend that no sufficient compliance with the statute is shown to create a lien as to either of the claims described in the complaint. The notice filed by the plaintiff with the county clerk is as follows:

"NOTICE OF MECHANIC'S LIEN.

"To Whom it may Concern: Notice is hereby given that the undersigned intends holding a lien for labor performed on the following described property: A story and a half house situated upon the John Leister place, one mile or a mile and a half in a westerly direction from Roseburg, Douglas county, Oregon; said building owned by W.F. Owens,--for the sum of one hundred and thirty dollars, for carpenter work performed from July 10 to September 14, 1886, on said building, at the request of W.F. Owens, the owner thereof.

"Dated this twenty-fifth day of September, 1886.

"G.W. KEZARTEE.

"Subscribed and sworn to before me, ______ 25, 1886.

"T.R. SHERIDAN, County Clerk.

"Filed and recorded, September 25, 1886, Vol. 1, page 32, Mechanic's Lien Docket of Douglas County, Oregon.

"T.R. SHERIDAN, Clerk."

Hamilton's lien is as follows:

"NOTICE OF MECHANIC'S LIEN.

"To All Whom it may Concern: Notice is hereby given that the undersigned, S. Hamilton, holds a lien for paints and materials furnished on the following described property, to-wit: A story and a half house situated on the John Leister place, one mile or a mile and a half in a westerly direction from Roseburg, Douglas county, state of Oregon; said building owned by W.F. Owens, deceased,--for the sum of fifty-six and thirteen-hundredths dollars, for paints and materials furnished upon said house from June 25, 1886, to September 22, 1886, at the request of W.F. Owens, the owner thereof.

"Dated this nineteenth day of October, 1886. S. HAMILTON.

"Subscribed and sworn to before me this October 19, 1886.

"JOHN LANE, Notary Public.

"Recorded October 19, 1886.

"T.R. SHERIDAN, Clerk."

And the following is a copy of the notice filed by L.C. Beardsley:

"To Whom it may Concern: Notice is hereby given that I, L.C. Beardsley, of Douglas county, Oregon, was at the times hereinafter mentioned engaged in the business of lumber merchant at Roseburg, Oregon. That between July 16, 1886, and September 3, 1886, under an express contract with W.F. Owens, I furnished lumber and material to be used in repairing a certain dwelling-house and fence situated on a certain piece of land, known as a portion of the John Leister donation claim, lying about one and a half miles north-west from Roseburg, Douglas county, Oregon. The bill of items of said materials is hereunto annexed, marked 'Exhibit A,' and made a part of this notice; the total amount thereof being thirty and eighteen-hundredths dollars, ($30.18.) The said lumber and material was actually used in repairing the said dwelling-house and fence, under directions from W.F. Owens, who was legally in possession of said premises, under a contract of purchase, and a bond for a deed from S. Marks & Co., as I am informed and believe. That the said sum of thirty and eighteen-hundredth dollars is now due, and no part of the same has been paid. That I am now the lawful owner and holder of said claim; and being desirous of availing myself of the benefit of an act of the legislature of the state of Oregon, approved February 11, 1885, entitled 'An act for securing liens for mechanics, laborers, material-men,' etc., I hereby declare my intention to hold a lien on said described building and property, to secure the payment of said sum of money, as by said act provided.

"Roseburg, Oregon, October 1, 1886. L.C. BEARDSLEY. "State of Oregon, County of Douglas--ss.: I, L.C. Beardsley, being first duly sworn, say: The foregoing notice of lien, and the claims therein set forth, and each and every item thereof, is true and correct, as I verily believe.

"L.C. BEARDSLEY.

"Subscribed and sworn to before me this the first day of October, 1886.

"JOHN LANE, Notary Public."

Prefixed to Beardsley's notice was an itemized account for lumber, amounting to $30.18.

Hill's Code, § 3673, prescribes the manner in which notice of lien shall be given, and by whom, and what it shall contain, as follows: "It shall be the duty of every original contractor, within sixty days after the completion of the contract, and of every mechanic, artisan, machinist, builder, lumber merchant, laborer, or other person, save the original contractor claiming the benefit of this act, within thirty days after the completion of the alteration or repair thereof, or after he has ceased to labor thereon for any cause, or after he has ceased to furnish materials therefor, to file with the county clerk of the county in which such building or other improvement, or some part thereof, shall be situated, a claim containing a true statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, and also a description of the property to be charged with said lien, sufficient for identification; which claim shall be verified by the oath of himself, or some other person having knowledge of the facts."

1. The present lien law in this state is blended in its provisions and the lien is extended to many structures, buildings, improvements, and erections, not enumerated in the earlier statutes on that subject; and the course of legislation here has constantly tended towards the security by way of lien to all mechanics, artisans, builders, contractors, and all others who furnish materiels or perform work and labor upon any of the erections or improvements enumerated in the statute. By the furnishing of materials or the performance of work and labor upon the property of another, they have added so much to its value, and the law has provided in the most liberal manner for their security. This being the object of the statute, the courts are bound to give every part of it full effect whenever its protection is invoked, and to see to it that its objects and purposes are not thwarted by a strained construction. Still it must be remembered the court cannot legislate. It can only enforce such laws as the legislative assembly may enact, and give effect to the rights set up under such statutes only, upon the conditions and in the manner therein prescribed. Nor can the court adopt any rule, of either...