Loyola Federal Sav. and Loan Ass'n v. Herndon Lumber & Millwork, Inc., No. 761348

• Docket Nº: No. 761348
• Citation: 218 Va. 803, 241 S.E.2d 752
• Case Date: March 03, 1978
• Court: Supreme Court of Virginia

Page 752

241 S.E.2d 752 218 Va. 803 LOYOLA FEDERAL SAVINGS AND LOAN ASSOCIATION
v.
HERNDON LUMBER & MILLWORK, INC., et al. Record No. 761348. Supreme Court of Virginia. March 3, 1978.

John J. Prendergast, Alexandria (Stephen C. Martson, John J. Prendergast, Ltd., Alexandria, on brief), for appellant.

Peter A. Cerick, Herndon (Timothy C. McPherson, Herndon, on brief), for appellee.

Page 753

No brief for Washington Concrete Products, a Division of General Industries, Inc., appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN and COMPTON, JJ.

PER CURIAM.

In this creditors' rights suit, the sole issue we decide is whether a trustee in a deed of trust was an "owner", within the meaning of Code § 43-4, so that the failure to name such [218 Va. 804] trustee, or trustees, in a memorandum for mechanic's lien invalidated the lien. ¹

A deed of trust on a parcel of land in Prince William County was recorded in April of 1974 from Baker and Moore General Contractors, Inc. to Max Ratner and Ronald Walutes, trustees, to secure a loan made to Baker and Moore from appellant Loyola Federal Savings and Loan Association. During subsequent construction of several homes on the parcel, appellees Herndon Lumber and Millwork, Inc. and Washington Concrete Products, a Division of General Industries, Inc., supplied certain materials under contracts with Baker and Moore.

In December of 1974, Herndon Lumber and Washington Concrete each recorded a Memorandum For Mechanic's Lien alleging certain indebtednesses due them by Baker and Moore. Listed as the name of the owner in each memorandum was only Baker and Moore General Contractors, Inc.

Thereafter, foreclosure proceedings commenced under the deed of trust. Loyola Federal purchased the property at the sale and a deed from the trustees to Loyola was recorded in April of 1975.

In May of 1975, this proceeding was instituted, Herndon Lumber filing a petition to enforce its mechanic's lien against, among others, Loyola Federal. Washington Concrete thereafter filed an intervening petition to enforce its lien.

Following reference to a commissioner in chancery, the trial court confirmed that part of the commissioner's report which found that the respective petitioners had each compiled with the provisions of the appropriate statute to perfect their liens. From the lower court's June 14, 1976 final decree declaring the liens valid, we granted Loyola Federal an appeal, limited to a consideration of the...