Loyola Federal Sav. and Loan Ass'n v. Herndon Lumber & Millwork, Inc., 761348

• Citation: 218 Va. 803,241 S.E.2d 752
• Decision Date: 03 March 1978
• Docket Number: No. 761348,761348
• Court: Supreme Court of Virginia
• Parties: LOYOLA FEDERAL SAVINGS AND LOAN ASSOCIATION v. HERNDON LUMBER & MILLWORK, INC., et al. Record

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.

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 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 foregoing issue.

Loyola argues that the liens were defective and thus invalid. It cites Code § 43-4, which deals with the requirements for perfection of mechanic's liens under these circumstances and which provides, in part, that the memorandum must include "the names of the owner of the property sought to be charged". Loyola contends that "both the holder of the equitable title, and the Trustees, holding legal title, are 'owners' of the real property and therefore (the names of the trustees) must be included in the Memorandum of Lien". We do not agree and affirm.

The word "owner" in § 43-4 was not qualified, hence the statutory term is to be construed in its ordinary meaning, given the context in which it is used. Wallace v. Brumback, 177 Va. 36, 42, 12 S.E.2d 801, 803-04 (1941). "Owner" is a word of general purport, but its primary meaning, as applied to land, is "one who owns the fee and who has the right to dispose of the property" and includes "one having a possessory right to land". Black's Law Dictionary 1259 (rev. 4th ed. 1968). Thus, "owner", as used in § 43-4, means the fee simple owner of the real estate, the one who has the right of possession to the land, the person who may be, in fact, responsible for the debt to the mechanic and for the subsequent lien against the property. In this context, "owner" does not mean a trustee under a deed of...