Nw. Cement & Concrete Pavement Co. v. Norwegian Danish Evangelical Lutheran Augsburg Seminary

• Decision Date: 11 June 1890
• Citation: 45 N.W. 868,43 Minn. 449
• Court: Minnesota Supreme Court
• Parties: NORTHWESTERN CEMENT & CONCRETE PAVEMENT CO. v NORWEGIAN DANISH EVANGELICAL LUTHERAN AUGSBURG SEMINARY ET AL.

43 Minn. 449

45 N.W. 868

NORTHWESTERN CEMENT & CONCRETE PAVEMENT CO.vNORWEGIAN DANISH EVANGELICAL LUTHERAN AUGSBURG SEMINARY ET AL.

Supreme Court of Minnesota.

June 11, 1890.

(Syllabus by the Court.)

1. The description in an affidavit for a mechanic's lien is sufficient if it so points out the building, and the land on which it is situated, that they can be identified with reasonable certainty by applying the description to the land. It is not necessary to give the common name of the building. The essential thing is to describe it so that it can be identified, and if this be done it is a substantial compliance with the requirements of the statute.

2. The rule of description, as in the case of deeds, is that, if the building and land be once sufficiently described, the addition of a circumstance, false or mistaken, will not vitiate the description.

3. In an action by a subcontractor to enforce a lien the original contractor is a necessary party. If he be named as a defendant in the title of the action, but not brought in as a party by service of the summons on him, the proper practice is for the court, upon the suggestion of the fact, to continue the action or delay the trial until he be brought in as a party. If the plaintiff has unreasonably delayed to make such service, a motion may be made to dismiss the action.

Appeal from district court, Hennepin county; REA, Judge.

Henry W. Benton, (Charles A. Willard, of counsel,) for appellant.

Ueland, Shores & Holt, for respondents.

MITCHELL, J.

This was an action to enforce a mechanic's lien for materials furnished by plaintiff, as a subcontractor, to the defendant Evans, contractor, for the erection of a building for the defendant corporation; and the principal question is as to the sufficiency of the description of the building, and land on which it is situate,in plaintiff's affidavit for a lien. The description is “a certain brick and stone building known as ‘Augsburg Seminary,’ situated upon a certain lot of land owned by [the defendant corporation,] described as ‘Lots 5, 6, 7, and 8 in Block 10, in Murphy's Addition to Minneapolis,’ according to the recorded plat thereof on file in the register of deed's office in and for Hennepin county.” It is also clearly appears, by implication, that the building referred to was erected on or subsequent to January 7, 1889, the date of furnishing the materials. This description is prima facie sufficient; and, if there is any latent ambiguity or defect, it must be made to appear by extrinsic evidence. The court finds that the defendant corporation contracted with Evans for the erection of a brick dwelling-house to be used as a place of residence for the professors at the Augsburg Seminary, and that plaintiff sold and delivered him these materials to be used in the construction of that building, and that they were in fact so used; that the building is a brick-veneered building, with stone trimmings, and is situated on lots 6 and 7, block 10, in Murphy's addition to Minneapolis, owned by the defendant corporation, and near one corner of the block; that at or near the other side of the block, and on the corner diagonally opposite, the defendant has a large brick-veneered building, with stone basement and foundation, which was erected some 16 years ago, and used as a seminary of learning, and well known by the name of “Augsburg Seminary;” and that there is no other building in Minneapolis known by that name. The court also finds that there was no evidence to show whether or not there is any other building than the brick-veneered dwelling on either of the fourlots described in the notice for lien. It cannot be doubted that this sufficiently describes the land on which the building is situated. The fact that it includes more than the plaintiff is entitled to a lien on will not invalidate the lien. Iron-Works Co. v. Strong, 33 Minn. 1,21 N. W. Rep. 740;Smith v. Headley, 33 Minn. 384,23 N. W. Rep. 550. The style of the building is also accurately described as “brick and stone.” We think it affirmatively appears from the findings that the old building known as “Augsburg Seminary” is not situated on either or any of these four lots; and it does not appear that there is any other building on them except the one erected by Evans, the contractor, and for which plaintiff furnished these materials. The affidavit for a lien is neither a process, pleading, judgment, nor conveyance, but merely a notice of the claim of the mechanic or material-man; and, while it must undoubtedly, in substance, comply with the requirements of the statute, yet the same fullness or preciseness is not required as in the case of a conveyance or judgment. The general rule as to the sufficiency of...