Lowrie & Webb Lumber Co. v. Ferguson

• Citation: 20 N.W.2d 209,312 Mich. 331
• Decision Date: 08 October 1945
• Docket Number: No. 48.,48.
• Parties: LOWRIE & WEBB LUMBER CO. v. FERGUSON et al.
• Court: Supreme Court of Michigan

312 Mich. 331

20 N.W.2d 209

LOWRIE & WEBB LUMBER CO.

v.FERGUSON et al.

No. 48.

Supreme Court of Michigan.

Oct. 8, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Thomas J. Murphy, judge.

Suit in equity by the Lowrie & Webb Lumber Company against Raymond C. Ferguson, Joseph F. Ferry, and others to foreclose a mechanic's lien for the value of lumber and building materials sold to defendant Ferguson. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Miller, Canfield, Paddock & Stone, of Detroit, for plaintiff and appellant.

Maurice P. Rhodes, of Detroit, for defendant and appellee.

STARR, Chief Justice.

An opinion in this case was filed June 4, 1945, and on plaintiff's application a rehearing was granted. Said opinion has been withdrawn, and this opinion, reaching the same conclusion, is substituted therefor.

Plaintiff appeals from a decree dismissing its bill of complaint filed to foreclose a mechanic's lien on property located in the city of Detroit. The facts are stipulated. Between June 26, and December 6, 1941, plaintiff sold and delivered to defendant Ferguson, lumber and building materials of the agreed value of $1,728.95, which were used in the construction of a dwelling house on lot 293 in Mayflower subdivision. On July 11, 1941, Ferguson advised plaintiff that he had contracted with defendants Harold and Mary Parslow to construct said house. On that date defendant Anne Currie held record title to lot 293, but, unknown to plaintiff, she had conveyed her interest by an unrecorded deed to defendant Ferguson ‘subject to unpaid taxes and tax titles.’ Plaintiff was also advised that defendant Joseph Ferry had an interest in the lot. On said July 11th plaintiff served notice of intention to claim a lien on the property, on defendants Currie, Ferry, and Harold and Mary Parslow.

The State of Michigan had bid in said lot 293 at delinquent tax sale in 1940, and, there being no redemption, the auditor general conveyed it to the State by deed dated June 3, 1941, and recorded November 3, 1941. The State thereby became the owner of the lot, free and clear of all liens and encumbrances, and a new chain of title was started.* Porter v. State Land Office Board, 308 Mich. 324, 13 N.W.2d 836;Darby v. Freeman, 304 Mich. 459, 8 N.W.2d 137. Subsequently, on February 4, 1942, plaintiff filed a claim of lien on the ‘land and building’ in the amount of $1,728.95. In its claim of lien it named defendant Currie as the owner of record and Harold and Mary Parslow as the owners of some interest in the lot, but did not name the State as owner. Plaintiff served copies of its claim of lien on defendant Currie and the Parslows, but did not serve copy on the State. copy on the State.* amended by Act No. 282, Pub.Acts 1939 (Comp.Laws Supp.1940, § 3459, Stat.Ann. 1940 Cum.Supp. § 7.112).-REPORTER.

In pursuance of Act No. 155, Pub.Acts 1937, as amended by Act No. 363, Pub. Acts 1941, Comp.Laws Supps. 1940, 1942, § 3723-1 et seq., Stat.Ann.1942 Cum.Supp. § 7.951 et seq., the State sold said lot at scavenger sale on April 17, 1942, to defendant Ferry for $120, and the State's deed to Ferry was recorded June 15th Plaintiff's account was not paid, and on February 1, 1943, it began the present suit to foreclose its lien. In its claim of lien and in its bill of complaint plaintiff asserted a lien on both the land and building. However, in the lower court it conceded that it had no lien on the land, but claimed a lien on the building under 3 Comp.Laws 1929, § 13103, as amended by Act No. 266, Pub.Acts 1941 (Stat.Ann.1944 Cum.Supp. § 26.283), which provides in part:

‘Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title * * * shall have a lien therefor upon such buildings (building) or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid.’

The trial judge held that plaintiff's failure to name and serve the State of Michigan, as owner, defeated its lien on the building. The above-quoted provision, relating only to a lien upon a ‘building or structure,’ must be considered in connection with other provisions of the mechanic's lien statutes regarding the form and service of the claim of lien. 3 Comp.Laws 1929, § 13105. Stat.Ann. § 26.285, provides in part:

‘Every person, * * * whether contractor, subcontractor, material man or laborer, who wishes to avail himself of the provisions of this statute, shall make and file in the office of the register of deeds, in the county or counties in which said real estate, house, building, structure or improvement to be charged with the lien is situated, a just and true statement or account of the demand due him, * * * and containing a correct description of the property to be charged with the lien, and the name of the owner, part owner or lessee, if known.’

3 Comp.Laws 1929, § 13106, Stat.Ann. § 26.286, provides in part:

‘Every person filing such statement or account as provided in the preceding section (section 13105 quoted above), * * * shall within ten (10) days after the filing thereof, serve on the owner, part owner or lessee of such premises * * * a copy of such statement or claim.’

To assert a lien on the dwellinghouse building under section 13103, plaintiff was required to file and serve a claim of lien. Section 13105 required that the lien state the name of the ‘owner, part owner or lessee, if known.’ Section 13106 required that a copy of the lien be served on the ‘owner, part owner or lessee.’ The recording of the deed to the State of Michigan on November 3, 1941, gave plaintiff constructive notice that the State was the owner of the land and building. However, in its claim of lien plaintiff did not name the State as owner, and it did not serve a copy of its claim on the State.

The present case is controlled by our decision in Lewis Manufacturing Co. v. Lee, 268 Mich. 383, 256 N.W. 457, 458, and it should be noted that that case also involved a claim of lien on a building, under section 13103 quoted above. In that case plaintiff sold building materials to one George Smith, the vendee in a land contract, and the materials were used in the construction of a dwelling house on a lot covered by the contract. Prior to August 22, 1931, the lot was conveyed by deed to said George Smith and his wife. On August 22nd plaintiff filed claim of...