McDermott v. Tolt Land Co.

• Decision Date: 15 April 1918
• Docket Number: 14400.
• Citation: McDermott v. Tolt Land Co., 101 Wash. 114, 172 P. 207 (Wash. 1918)
• Parties: McDERMOTT et al. v. TOLT LAND CO. et al.
• Court: Washington Supreme Court

172 P. 207

101 Wash. 114

McDERMOTT et al. v. TOLT LAND CO. et al.

No. 14400.

Supreme Court of Washington

April 15, 1918

Department 2.

Appeal from Superior Court, King County; Guy C. Alston, Judge.

Action to foreclose laborers' liens by L. D. McDermott and others against the Tolt Land Company, a corporation, National City Bank of Seattle, a corporation, and the Carnation Lumber & Shingle Company. Judgment for defendants, and plaintiffs appeal. Affirmed.

H. E Peck, of Seattle, for appellants.

J. A Coleman, of Everett, for respondents.

MOUNT J.

This action was brought to foreclose laborers' liens against the property of the defendants. Upon a trial of the case, the court denied the plaintiffs any relief, and they have appealed from that judgment.

The facts are as follows: The Fisher-Bird Lumber Company was a corporation engaged in the manufacture of lumber. The plaintiffs were employed by that company, and while they were so employed the name of the company was changed to the Fisher-Sorenson Lumber Company. On January 5, 1915, each of the plaintiffs filed in the office of the auditor of King county a notice of his claim of lien against the property of the company for the amount due for wages within the preceding six months, under the provisions of sections 1149 and 1150 Rem. & Bal. Code. On February 25, 1915, the Fisher-Sorenson Lumber Company was adjudged a bankrupt. On March 30, 1915, a trustee in bankruptcy was appointed for the company. After the adjudication of bankruptcy, the plaintiffs filed with the referee their respective claims for wages due, and stated therein that said claims were secured by liens already filed. The several claims were allowed by the referee. No funds were available for the payment of the debts of the company, and on March 22, 1916, the mill and the land of the company were sold to the defendant Tolt Land Company, and the trustee was directed to execute to the latter company a conveyance of the real estate and personal property subject to all incumbrances except certain specified mortgages and vendors' liens. The liens of the plaintiffs were not excepted, and their claims have not been paid. The proceeds of the sale were all used to pay the specified incumbrances and the expenses of the bankruptcy proceedings. Thereafter, more than eight months after the filing of the notices of liens, this action was commenced to foreclose the liens. The court concluded from these facts: First, that the action was not commenced within the time limited by the statute; and, second, that the plaintiffs waived their liens by filing the claims with the referee, and elected thereby to have their claims satisfied from the assets of the bankrupt estate. If the court was correct in either of these conclusions, the judgment must be affirmed.

In view of our conclusion upon the first question presented, it will be unnecessary to discuss the second.

The statute provides, at section 1152, Rem. Code, that:

'Any such lien may be enforced within the same time and in the same manner as mechanics' liens are foreclosed.'

Section 1138 of the mechanics' lien law provides that:

'No lien created by this chapter binds the property subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such lien. * * *'

In Peterson v. Dillon, 27 Wash. 78, 67 P. 397, in referring to this statute, we said:

'The mechanic's lien is altogether a creation of the statute, and is circumscribed by the terms of its own creation. It exists independent of any special contract. Where a contract is entered into by the parties, it is not the contract which creates the lien under the statute, but it is the use of the material furnished upon the premises, the putting of it into the building and attaching it to the freehold, which entitled the party furnishing the same to a lien upon the premises to the extent of its value. * * * The statute creates and limits the duration of the lien. When the limit fixed by the statute for the duration of the lien is passed, no lien exists, any more than if it had never been created. The statute gives jurisdiction to the court to foreclose a lien on certain conditions, the filing of a lien notice, and the commencement of the action within eight months after such notice is filed. If these things are not done, no jurisdiction exists in the court to foreclose the lien.'

In Davis v. Bartz, 65 Wash. 395, 118 P. 334 we said:

'Since the lien expires by force of the statute unless, action be commenced within the statutory time, it is necessary to the pleading and proof of a valid lien that the complaint allege and evidence show that the work was done or materials furnished within that time, or the action cannot be maintained. This necessarily results from the wording of the statute, as construed by this court in a number of decisions. Rees v. Wilson, 50 Wash. 339, 97 P. 245; Northwest Bridge Co. v. Tacoma Shipbuilding Co., 36 Wash. 333, 78 P. 996. * * *'

See also, City Sash & Door Co. v. Bunn, 90 Wash. 669, ...