Minor v. Marshall.

Decision Date19 August 1891
Citation6 N.M. 194,27 P. 481
PartiesMINOR et al.v.MARSHALL.
CourtNew Mexico Supreme Court


Appeal from district court Sierra county; W. F. HENDERSON, Judge.

Suit in equity to foreclose a mechanic's lien by Mitchell A. Minor and others against J. H. Marshall. A. demurrer to the bill was sustained, and the suit dismissed. Plaintiffs appeal. Affirmed.

FREEMAN, J., dissenting.

A bill to foreclose a mechanic's lien is demurrable when it sets out a copy of the notice of claim which on its face is insufficient.

J. Morris Young and E. L. Bartlett, for appellants.

Elliott & Pickett, for appellee.


This is a suit in equity brought to foreclose a number of liens filed against the “Humming Bird” mine, in the county of Sierra, as allowable under section 1524 of the Compiled Laws of 1884 of this territory. To the bill there was interposed a demurrer, which was sustained by the lower court, and the bill dismissed. The plaintiffs assigned various grounds of error growing out of the sustaining the demurrer. It might be stated here that it would be a better practice for the trial judge, in passing upon a demurrer which is predicated upon various grounds, to specifically state and have it made a matter of record upon which grounds, if less than all, be bases his judgment; for it may be that his judgment was based solely upon one ground, while the record necessarily brings up all the grounds formally alleged in the pleading, and requires a decision upon points which may not be decisive of the case,-being harmless error, and really in accordance with the judge's holding; yet the announcement here, though in fact the same as in the court below, would seem to be against him.

The material points to be considered, under the assignment of errors, are: First, were the notices of the claims for the liens, filed by the plaintiffs, insufficient because they alleged that the defendant” was the owner, or reputed owner,” of the mine against which the liens were sought to be established? and, second, were the notices of the claims invalid because said claims were not properly verified?

The appellants contend, in the first place, that, as the bill sets out the action properly, the demurrer admits the fact thus pleaded to be true, and therefore it was error to sustain the demurrer. But this contention must be based upon the supposition that the facts pleaded were well pleaded, and were not conclusions of law. Now, one of the material facts in the case is, were the legal notices of claim given in accordance with the statute? If they were not, the case must fail. If, too, that fact was so pleaded, as that the notices appear in the bill, and their illegality is seen upon the face of the pleading, then certainly that fact can be reached by demurrer. The notices of claims were all made parts of the bill as exhibits, and as parts of the allegations of the facts required. This being true, the demurrer was the proper pleading by which to raise the question of their sufficiency.

As a predicate for the discussion of the errors raised by this record, it is insisted by the appellants, and denied by the appellee, that the mechanic's lien law should be liberally construed. Each party contends vigorously that his exposition of that issue is supported by the adjudications of this court. It must be conceded that in some way two cases, delivered at the same term of this court, have in their opinions statements which are diametrically opposed to each other. In the case of Hobbs v. Spiegelberg 3 N. M. 222, 5 Pac. Rep. 529, Judge AXTELL says: We fall to see how this statute is in derogation of the common law;” and,” Nor do we think that the doctrine of liens is either new, in derogation of the common law, or inequitable.” A careful consideration of this case will convince one that these remarks were wholly unnecessary to a determination of the case, and hence could not be enunciating a principle to bind the court unless reversed. The fact is that the doctrine of “in derogation of the common law” is invoked simply to uphold a strict construction in a given case when the facts call for a construction; but Judge AXTELL in this very case, when making the statements above quoted, continuing said: “Nor is it possible for us to see any necessity for construction.” This case is, then, no authority upon the question as to how the mechanic's lien law should be construed. In the case of Finane v. Hotel & Imp. Co., 3 N. M. 256, 5 Pac. Rep. 725, however, the court undertook specifically to place a construction upon a portion of the statute in regard to the verification of the claim, and in passing upon the principle to govern in the construction of the whole statute Judge BELL says: “The rights conferred by these statutes are purely statutory, and were utterly unknown to the common law or in chancery. They are in violent derogation of the rights of property at the common law, and must be strictly construed.” This enunciation of the principle governing in such cases does not conflict with the holding in the case of Hobbs v. Spiegelberg, but only with language not necessary to the case, and hence must be accepted by us, unless we are ready to overrule it. The statement that mechanic's lien laws are in derogation of the common law can hardy be successfully controverted; for they place liens upon property which before and under the common law had been sacredly protected against any but those of a mortgage or a judgment. More, they render it possible to incumber an estate, even against the knowledge, and, in any case, against the wish, of the owner. Phil. Mech. Liens, § 9.

But by “strict construction” is not meant an arbitrary, inequitable, or harsh construction,-one which will give the property owner, or even third parties, the opportunity to take advantage of technicalities to deprive an honest laborer of his wages,-but such a construction as will require a substantial compliance with the statute; such a one as, while it protects the honest laborer, cannot be made the means by a loose and uncertain construction of perpetrating fraud, or of holding out inducements thereto. Hooper v. Flood, 54 Cal. 218. A strict construction is fully met which simply requires the laborer to bring himself by his notice clearly within the provisions of the statute; and when this is done the construction is the one adopted by the supreme court of the United States. Davis v. Alvord, 94 U. S. 545. The terms “strict” and “liberal” are comparative simply, and in most of the cases are used without definition. They are only used in the light of the facts of each specific case. Such an interpretation as will de mand a substantial compliance with all the requirements of the law will be sufficient. With this character of a construction we are satisfied that the rights of all parties will be protected.

1. Were, then, the notices of claim of liens insufficient, because they alleged that the defendant “was the owner or reputed owner” of the mine in question? The argument is that the law requires a distinct statement of who the owner or reputed owner is, and that the proof must meet that single specific allegation; that in this case the allegation is in the disjunctive, the allegation being one or the other, and therefore it is erroneous. Does this statement in any way mislead the persons for whom the notices are intended? The object of the statute is to give the laborer a lien for his wages upon the property, as against the owner or reputed owner. It makes no difference which the party is; in either case the laborer is entitled to the lien providing he states, with other things, who the owner or reputed owner is, if he knows. He may be uncertain whether the party is the owner or reputed owner. If, then, in his notice, he says to the world that a certain person is the owner or reputed owner, no one is damaged; and if, upon foreclosure proceedings, he proves either allegation, he certainly substantiates his claim upon that point. In the case of Arata v. Mining Co., 65 Cal. 340, 4 Pac. Rep. 195, the court held the allegation of “owner and reputed owner” a substantial compliance with the law, for the party could have been both. So, in this case, he can be either, and, if so, the requirement of the statute has been met. If, then, the learned judge passed upon this point adversely to the plaintiffs in the court below, as it must be presumed he did, from the form of the record, it was error. But, in any view of the case as here presented, it was a harmless error.

2. Were the notices of claim of liens properly verified? The verification was substantially the same as to each claim. The claims themselves set out fully what the statute requires, and in all but one case were signed by the party asking the lien. To the notices were attached affidavits, also signed by the parties, and sworn to before a notary. Those affidavits necessarily refer to the claims to which they are attached. Do they substantially verify the claim? The following is one of the affidavits: “On this *** personally appeared *** before me, and who, being by me first duly sworn, on his oath states that the abstract of indebtedness mentioned and described in the foregoing notice is true and correct, and that there is still due and owing and unpaid to him from the said *** mine and its owner the sum,” etc. Section 1524, Comp. Laws 1884, states what the claim should be, and what should be verified. A part of the section is as follows: “A claim containing a statement of his demands, after deducting all just credit and offset, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given, and condition of his contract, and also a description of the property to be charged, which claim must be verified by the oath of himself, or of some other person.” It is very evident that...

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8 cases
  • Sonida, LLC v. Spoverlook, LLC
    • United States
    • Court of Appeals of New Mexico
    • December 8, 2015
    ...overruled on other grounds by Ford v. Springer Land Ass'n, 1895–NMSC–011, 8 N.M. 37, 41 P. 541.2 {14} In Minor v. Marshall, 1891–NMSC–029, 6 N.M. 194, 27 P. 481, the Supreme Court of the Territory New Mexico loosened the requirements for stating the claim itself under the statute, permittin......
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    • October 26, 1933
    ...held that a verification covering some, but not all, of the essential elements of the statement of claim is insufficient. Minor v. Marshall, 6 N. M. 194, 27 P. 481, 487; McDonald v. Rosengarten, 134 Ill. 126, 25 N. E. 429; Orr & Lockett Hardware Co. v. Needham Co., 169 Ill. 100, 48 N. E. 44......
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    • United States
    • New Mexico Supreme Court
    • October 1, 1934
    ...satisfy the judgment, for there is nothing in the record to show any personal liability on the part of Mrs. Albright.” In Minor v. Marshall, 6 N. M. 194, 27 P. 481, 484, it was decided: “The indebtedness [for labor done under the mechanics' lien law] is a personal claim independent of the l......
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    ...law and should be strictly construed, Finane & Elston v. Las Vegas Hotel & Improvement Company, 3 N.M. 411, 5 P. 725. In Minor v. Marshall, 6 N.M. 194, 27 P. 481, it was held, while adhering to the strict construction rule, that strict construction did not contemplate arbitrary or inequitab......
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