Pacific States Sav., Loan & Building Co. v. Dubois

• Citation: 83 P. 513,11 Idaho 319
• Parties: PACIFIC STATES SAVINGS, LOAN AND BUILDING COMPANY v. DUBOIS
• Decision Date: 14 August 1905
• Court: Idaho Supreme Court

83 P. 513

11 Idaho 319

PACIFIC STATES SAVINGS, LOAN AND BUILDING COMPANY v. DUBOIS

Supreme Court of Idaho

August 14, 1905

MECHANICS' LIENS-MORTGAGE-PRIORITIES-JUDGMENT.

1. In adjusting the rights of lienholders, under the provisions of section 5 and other sections of an act to secure liens for mechanics and others, approved February 7, 1899 (Sess. Laws 1899, p. 148), where the erection or construction of building was not let to anyone, but the owner employed men to furnish rock and do the rockwork, and employed others to furnish the brick, and others to lay them, others to furnish other materials, others to furnish and do the plumbing, and others to do the carpenter work, etc., the court, in the judgment must declare the rank or class of liens in accordance with the provisions of section 11 (page 149) of said act, and where a mortgage lien attached prior to the time that either or any of such lien claimants commenced work or commenced to furnish material, the lien of such mortgage is prior to the liens of the last-mentioned laborers or materialmen.

SAME.

2. The provisions of section 11 of said act (Laws 1899, p. 149) apply to cases in which there are no intervening mortgage liens, Where mortgage liens are involved in the foreclosure of mechanics' and materialmen's liens, the time or the date when the building was commenced, or the laborer began work, or the materialmen com- menced to furnish material, must be taken into consideration in determining the priority of such liens over the mortgage liens.

(Syllabus by the court-Ailshie, J., dissenting.)

APPEAL from the District Court in and for Ada County. Honorable George H. Stewart, Judge.

Action by A. J. Turley and others against J. K. Dubois. From the judgment the Pacific States Savings, Loan and Building Company appeals. Reversed.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant.

Alfred A. Fraser, for Appellant.

This question involves a construction of the statutes of Idaho relating to mechanics' liens, and the particular sections involved are found in the laws of the Fifth Session of 1899 of Idaho. In the case of Root v. Bryant, 57 Cal. 48 the court in the syllabi say: "Intermediate to the execution and recording of a mortgage, work was commenced upon the mortgaged premises, and a mechanic's lien claimed therefor; held, that the lien of the mortgage was superior to the mechanic's lien, unless the plaintiff, at the time he commenced the work, had no notice of the existence of the mortgage." (McClain v. Hutton, 131 Cal. 144, 61 P. 273, 63 P. 182.) In the case of Home Sav. etc. Assn. v. Burton, 20 Wash 688, 56 P. 940, the supreme court of the state of Washington, in a case almost identical with the case at bar, and construing the statute of Washington, which is the same as the statute of Idaho say, in the opinion of the court: "The appellant contends that its mortgage is entitled to preference over all liens which attached subsequent to the time when it was recorded. Section 1666 of the General Statutes (1 Hill's Code, par. 1960) provides that 'the liens provided for in this chapter are preferred to any lien, mortgage or other encumbrance which may have attached subsequent to the time when the building, improvement or structure was commenced, work done or the material was commenced to be furnished.' The language of this section is so clear and unequivocal that there is no necessity to resort to any rule of construction to determine its meaning. When the legislature said that the liens for which provision was made are preferred to any lien, mortgage or other encumbrance of which the lienholder had no notice and was unrecorded, they also in effect said that such liens are not preferred to mortgages of which the lienholder had notice or were recorded at the time the lien arose. . . . 'Mechanics' liens have priority unrecorded, and of which the lienor had no notice when the lien attached.' (2 Jones on Liens, 2d ed., p. 441, par. 1460.) And this court has expressed the same view in Hutting Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 32 P. 1073, in which it is said: 'Under the provisions of our statute, a materialman can only claim a lien from the time he commenced to furnish materials for the building; and if such time is subsequent to the creation of the mortgage lien, of which he has had notice, his claim for materials is subject thereto.' It would seem that, under the provisions of this statute and the authorities cited, it could hardly be doubted that appellant's mortgage is prior and superior to the liens of these respondents."

Quarles & Pritchard, Wyman & Wyman, Johnson & Johnson, Davidson & Stoutemeyer, Gustave Kroeger, J. T. Morgan, R. L. Blewett, Henry Z. Johnson, Neal & Kinyon, Charles F. Keelsch, Silas W. Moody, Hawley Puckett & Hawley and Hugh E. McElroy, for Respondents.

Our contention is that the construction of this section of our lien law must be, that the lien of laborers and materialmen, in all cases, attach at the commencement of the building or structure, if the work of construction has been continuous, and it makes no difference when the work is done or materials furnished, nor whether the structure is erected under an original contractor or by the owner of the premises. "The facts disclosed by the record bring this case fully within the rule laid down by this court in the case of Cahoon v. Levy, 6 Cal. 295, 65 Am. Dec. 515, and on the authority of that decision the judgment is affirmed." (Brennan v. Marsh, 10 Cal. 435.) We must construe our statute without the aid of the California decisions. In Gardner v. Leck, 52 Minn. 522, 54 N.W. 748, it is said: "There is nothing novel or unjust in a law which gives priority to the liens of mechanics and materialmen over those parties originating subsequent to the commencement of the improvements on the land. In at least twenty states such laws have been enacted and again and again have been sustained by the courts." The construction contended for by respondents is in harmony with the general policy of the laws of Idaho for the protection of laborers. (See sections 3350 and 3361, New Code of Civil Procedure giving liens to woodmen and farm laborers.) A mechanic's lien is superior to the lien of a mortgage as to the increased value of the property, due to the improvements made by the lienor subsequent to the mortgagee. (Christian-Craft Grocery Co. v. Kling, 121 Ala. 292, 25 So. 629.)

In the case of Davis v. Bilsland, 18 Wall. 659, 21 L.Ed. 969, it is said (construing Montana statute): "This language is unambiguous; the liens secured to the mechanics and materialmen have precedence over all other encumbrances put upon the property after the commencement of the building. And this is just. Why should a purchaser or lender have the benefit of the labor and materials which go into the property and give it its existence and value?" We also refer to the following authorities, decided under statutes similar to Idaho: Kansas Mtg. Co. v. Weyerhauser, 48 Kan. 335, 29 P. 153; Hextun Steam Heater Co. v. Gordon, 2 N. Dak. 246, 33 Am. St. Rep. 776, 50 N.W. 708; Vilas v. McDonough Mfg. Co., 91 Wis. 907, 51 Am. St. Rep. 925, 65 N.W. 488, 30 L. R. A. 778.

SULLIVAN, J. Stockslager, C. J., concurs. AILSHIE, J., Dissenting.

OPINION

The facts are fully stated in the opinion.

SULLIVAN, J.

This action was commenced by A. J. Turley and others to foreclose certain mechanics' and laborers' liens against the property of the respondent Dubois. The appellant corporation among a number of others, was made a party defendant. During the progress of the case the court made an order changing the parties in said action, so that thereafter all further proceedings in said action were entitled "Pacific States Savings, Loan & Building Company, Appellant, v. Jesse K. Dubois," and certain other parties, as defendants. The appellant company was the owner and holder of two mortgages upon the property involved in this case--one for the sum of $ 20,000, which was filed for record in the proper recorder's office on the twenty-third day of January, 1904; and the other for $ 10,000, which was filed for record in the proper recorder's office on the eighteenth day of June, 1904, which mortgages were executed by said Dubois and his wife to the said appellant corporation to secure the payment of said sums. The court, after hearing the evidence, held as a matter of law that the liens of all laborers, materialmen or contractors relate back to the time of the commencement of the building, irrespective of the question as to whether the work was done, the material furnished, or the contract entered into prior or subsequent to the time that the mortgages of the appellant corporation were filed for record. From the judgment of the court declaring that said liens were prior to the mortgage liens of the appellant, this appeal was taken.

In this case the contract to erect said building was not let to anyone, but the owner employed men to furnish and do the rockwork, employed others to furnish the brick, others to furnish other material, others to furnish and do the plumbing, etc., and others to do the carpenter work, etc. Several errors are assigned, some of which go to the sufficiency of certain of the liens filed, but the main question is whether or not the claim of liens of persons performing labor upon or furnishing materials for the construction of the building on the premises referred to in the complaint relates in each case back to the time of the commencement of said building, or whether the lien attaches in favor of such parties from the date on which the labor was commenced to be performed, or the material was commenced to be furnished. It is conceded that if all of said liens relate back to the time of...