McNamee v. Rauck

• Citation: 27 N.E. 423,128 Ind. 59
• Decision Date: 09 April 1891
• Docket Number: 14,619
• Parties: McNamee v. Rauck et al
• Court: Indiana Supreme Court

27 N.E. 423

128 Ind. 59

McNamee v. Rauck et al

No. 14,619

Supreme Court of Indiana

April 9, 1891

From the Wayne Circuit Court.

The judgment is reversed, with costs, and the court is instructed to overrule the demurrers to the complaint, and to proceed in accordance with this opinion.

C. H Burchenal and J. L. Rupe, for appellant.

J. F Kibbey, H. U. Johnson, H. C. Fox and J. F. Robbins, for appellees.

OPINION

Miller, J.

A single error is alleged, and that is assigned upon the ruling sustaining the several demurrers of the appellees to the complaint. The material facts stated as the cause of action may be thus summarized: Mary Jane Rauck was the owner of an undivided interest in, and in occupancy of, a tract of land in Wayne county; that the appellant, upon her employment, furnished the material and built upon the land a dwelling-house, which was completed, accepted and occupied by her in January, 1888; that, with intent to acquire a lien upon the land and building, for his work and material furnished, the appellant caused inquiry to be made of the recorder of the county as to the description of the land owned and occupied by her; and having obtained, as he supposed, a correct description of the same, he made out and filed in the recorder's office of Wayne County the following notice:

"Mary J. Rauck: Take notice, that I intend to hold a lien on the east half of the northwest quarter of section 36, township 15, range 13; also the west half of the southwest quarter of section 25, township 15, range 13, of Wayne county, Indiana, and on the house thereon situate, for the sum of one thousand dollars due me this day from you, for the building of said house and the furnishing of the material thereof by me at your request, which said work was furnished on the day of -----, 1888.

"This 14th day of January, 1888.

"Emery M. McNamee."

Which notice was, on the 16th day of January, 1888, duly recorded; that the notice did not correctly describe the land owned and occupied by the appellant Rauck; that there are no such lands or sections in said township and range in Wayne county, but that said Rauck did at the time own an interest in and occupy the following described real estate in Wayne county, to wit: All of the northeast quarter of section 26, in township 15, range 13, except fifty acres out of the northwest corner thereof owned by J. B. Pierce; that she did not own or occupy any other lands in Wayne county, nor had any other house been erected for her; that the appellant intended to and thought he had placed a lien upon the property she owned and occupied, and upon which he had erected the dwelling-house; that before discovering his mistake, he caused an action to be instituted in the Wayne Circuit Court for the foreclosure of the lien, and such proceedings were had that on the 16th day of March, 1888, he recovered a judgment against her for $ 948 and costs, and a decree for the sale of the real estate described in the notice; that while the above action was pending, the other appellees brought suit in the Wayne Circuit Court, on simple contracts for the payment of money, against the appellee, Mary J. Rauck, and severally obtained judgments against her, prior to March 16th, for an amount exceeding the value of the interest of said Mary J. in the land; that at the time of bringing the said actions and the recovery of the judgments, they and each of them had full notice and knowledge of the foregoing facts; that said appellees claim that their judgments are liens against the lands of said Mary J. Rauck, prior and superior to that of the appellant. The prayer for relief is for the reformation and correction of the notice; that a lien be declared in favor of the plaintiff superior to the judgments of the defendants and for a foreclosure.

The rule usually adopted by the courts as standards by which the adequacy of a description, in a notice of lien, is to be tested is, that if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described, with reasonable certainty to the exclusion of others, it will be sufficient. Phil. Mech. Liens, section 379. It has also been held that the same rule applies to the description of lands in notices of an intention to hold a mechanic's or material man's lien that appertains to descriptions in deeds and mortgages. White v. Stanton, 111 Ind. 540, 13 N.E. 48.

Where the description is so uncertain as to afford no reliable clue to a more definite and correct description, no lien is acquired; but where the description, though too defective and insufficient of itself to identify any particular tract of land, can, nevertheless, be aided by the introduction of extrinsic evidence in support of such averments, it will be held to be sufficient for the purpose intended, and a true description will be supplied at the hearing. White v. Stanton, supra.

Courts are reluctant to set aside a mechanic's claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise. Phil. Mech. Liens, section 379. But when the description is void for uncertainty on its face, parol evidence is inadmissible to remedy the defect. Munger v. Green, 20 Ind. 38.

The principle drawn from the authorities seems to be this: That a description in a notice of lien can not be supplied by oral evidence, but that an ambiguity may be explained and the premises identified.

The appellees cite and rely upon the case of Lindley v Cross, 31 Ind. 106, where by a misdescription lots "3 and 4" were described as lots "6 and 7." An effort was made to correct the misdescription, in the action to foreclose, by alleging a mistake and showing that no third persons had acquired rights that would be affected by a correction of the mistake. It was held that the lien of the mechanic or material man is created by statute, and that the...