Marean v. Stanley

• Decision Date: 22 October 1894
• Parties: MAREAN v. STANLEY.
• Court: Colorado Court of Appeals

38 P. 395

5 Colo.App. 335

MAREAN v. STANLEY.

Court of Appeals of Colorado

October 22, 1894

Error to district court, Arapahoe county.

Action by Gilbert Stanley against W.A. Marean to enforce a mechanic's lien. There was a judgment for plaintiff, and defendant brings error. Affirmed.

F.A. Williams, for plaintiff in error.

Wm Knapp, for defendant in error.

REED J.

One J.H. Rigden, in the month of March, 1890, was building for himself two different sets of tenements in North Denver. Stanley, defendant in error (plaintiff below), was by Rigden employed to do the plumbing in the houses. No contract as to price was made. It appears that defendant had previously been quite extensively employed by Rigden on other buildings, and was required by him to do the work at what it should be worth. One set of buildings was known as the "Caithness Avenue Property"; the other, as the "Douglas Street Property." The work upon the Caithness avenue property was commenced May 2d. The work was nearly or quite completed during the month with the exception of one item charged as done upon August 6th, amounting to $4.60. The whole bill upon that property amounted to $460.64.

The work upon the Douglas street property was commenced April 30th, and appears to have been substantially completed May 26th. After that time, from June 4th to July 21st, there were three items charged, aggregating $8.10, the whole bill being $406.62. In the month of June, plaintiff in error purchased the two properties in question, subject to the claims and trust deeds against and upon them, and giving in exchange ranch or farm property in the northern part of the state. Deeds to the respective properties were executed, but not delivered, as plaintiff wished to release the property from certain incumbrances before the exchange was made. It was contracted and intended that the transaction should be closed on July 7th, but it was delayed, and not completed until September 11th. For some time previous to the exchange an attorney and agent for both parties, with the money of plaintiff, was paying off claims, and relieving the property from liens and incumbrances. The claims of defendant were not paid, not because of the want of knowledge of their existence by plaintiff, but, as testified by him, because he supposed no liens could be filed, and that the statutory time for filing them had expired. At 1:40 p.m. on September 11th defendant filed his liens against the respective properties at 3:40 p.m. of same day the deed from Rigden to plaintiff was filed for record. It was in evidence that, at some time previous, defendant had brought suit against Rigden for all money due, including the lien claims, and had recovered a judgment for $1,383.51.

It is earnestly urged by counsel, in argument, that the claims having been embraced in such suit, merged in the judgment, and by reason of it the suits to enforce the liens could not be maintained; and numerous authorities are cited, supposed to sustain the contention. Counsel seem to have failed to distinguish between the debt and the security. The statutory lien given is equitable,--must be enforced in equity. The proceeding is for the purpose of subjecting the security to the payment of the debt. It would seem, upon principle and authority, that nothing short of the payment of the debt by satisfaction of the judgment would extinguish the right to enforce the claim against the security. By paragraph 2161, Gen.St., it is provided, "No remedy given in this act shall be construed as preventing any person from enforcing any other remedy which he otherwise would have had, except as otherwise herein provided." The proceeding to enforce a mechanic's lien is only in rem. The amount of Rigden's indebtedness was much greater than his security upon the property. The property could only be sold for the amount of the liens. The remedy is cumulative. The law, although it will not allow a person to have more than one satisfaction of a debt, allows several remedies, until one satisfaction is obtained. See Delahay v. Clement, 3 Scam. 201, where a proceeding to enforce a mechanic's lien was pleaded in abatement of an action at law. In Phil.Mech.Liens, § 311, it is said: "It is to be borne in mind that the lien itself, and the debt due for the work and materials, are totally distinct. When the owner has himself ordered an expenditure on his land, there always existed a debt, for which he was personally responsible, recoverable in an ordinary action of assumpsit. The lien, as an appropriation of a specific thing, has been superadded to this remedy, but has not interfered with its enforcement. The two remedies stand independently of each other. As a general proposition, it is true that, if a party have several remedies for the recovery of the same debt, he may resort to them all, though he can have but one satisfaction." In West v. Fleming, 18 Ill. 248, it is said: "The only questions important for determination are whether Fleming, by his attachment, waived his lien, under the mechanics' lien law, or was precluded thereby from proceeding under that law; and whether the court erred in decreeing a sale by the commissioner, without giving the statutory right of redemption. The proceeding under the statute is additional or cumulative of such other remedies for enforcement of the contract out of which the lien arises, as the party may have, either against person or property. He may...