Poynter v. Fargo

• Decision Date: 15 October 1929
• Docket Number: 5214
• Citation: 281 P. 1111,48 Idaho 271
• Parties: HENRY T. POYNTER, Respondent, v. LYMAN FARGO and ESTELLA FARGO, Appellants
• Court: Idaho Supreme Court

281 P. 1111

48 Idaho 271

HENRY T. POYNTER, Respondent, v. LYMAN FARGO and ESTELLA FARGO, Appellants

No. 5214

Supreme Court of Idaho

October 15, 1929

MECHANICS' AND MATERIALMEN'S LIEN - STATUTORY CONSTRUCTION-LIABILITY OF VENDEE-MORTGAGES-PRIORITY.

1. C S., secs. 7339, 7343, giving mechanic's lien for labor performed upon building, or for materials furnished in construction thereof, and for improving lot or street in front of or adjoining lot, should be liberally construed.

2. Where contract contemplated the construction of a sewer in connection with and as part of houses, claim for services performed and material furnished in putting in sewer was lienable under C. S., secs. 7339, 7343, giving mechanic's lien for labor and materials for building and improving of lot or street in front of, or adjoining, lot.

3. Where sewer construction work was done at instance and request of vendee in possession, with knowledge of vendor and vendee completed his contract and became owner of property, mechanic's lien attached in suit to foreclose lien under C. S., secs. 7339-7382.

4. Mechanic's lien for services performed at instance of vendee was not limited to part interest in property under C S., sec. 7344, where, at time of foreclosure suit, vendor had no interest except by reason of mortgages, and there was no question of vendor's lien involved, and nothing to show that mortgages were purchase-money mortgages.

5. Where it did not appear that one furnishing labor and materials for construction of sewer in connection with houses had notice of mortgages at time sewer construction work was commenced and where mortgages were not recorded, the liens of the mortgages were not superior to the mechanic's lien under C. S., secs. 5378, 5424, 5425, 7345.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action to foreclose a mechanic's lien. Judgment for plaintiff. Affirmed.

Judgment affirmed. No costs awarded. Petition for rehearing denied.

H. B. Thompson, for Appellants.

Where a person owning less than a fee-simple estate causes premises to be improved, then only such estate as he had at the commencement of the work is subject to the establishment of a lien. (C. S., sec. 7344; 40 C. J., pp. 111, 457, 463; Boise Payette Lbr. Co. v. Bickel, 42 Idaho 245, 45 A. L. R. 575, 245 P. 92; Steel v. Argentine Min. Co., 4 Idaho 505, 95 Am. St. 144, 42 P. 585.)

The statutes of the state of Idaho do not authorize the establishment of a mechanic's or laborer's lien for the construction of a sewer. (C. S., sec. 7343; Fleming v. Prudential Ins. Co., 19 Colo. App. 126, 73 P. 752; McDermott v. Palmer, 8 N.Y. (4 Seld.) 383; Ellison v. Jackson Water Co., 12 Cal. 542; Truesdell v. Gay, 79 Mass. (13 Gray) 311.)

William Edens, for Respondent.

In assignment of error number five, it is contended by appellant that the statutes of the state of Idaho do not authorize the establishment of a mechanic's lien for the construction of a sewer, but in answer to this contention we call the court's attention to C. S., sec. 7339. This statute is based on the theory that whoever contributes labor or material whereby the real property of another is enhanced in value shall be entitled to a lien upon the whole property in the sum due. The extent of the lien, when he comes to foreclose must be measured by the amount found due him on his contract at the time of filing his lien. (Steltz v. Armory Co., 15 Idaho 551, 99 P. 98, 20 L. R. A., N. S., 872.)

GIVENS, J. T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur. Budge, C. J., did not participate in this decision.

OPINION

GIVENS, J.

Respondent sued to foreclose a material-man's and mechanic's lien under C. S., chap. 267 (secs. 7339-7382). Appellant denied that White, who contracted for the labor and materials, was the owner of the lots sought to be subjected to the lien; urged that he (appellant) had two mortgages on the premises to which the claimed liens were inferior and that no such lien for sewer construction is authorized under our statute.

As to the latter point first, a liberal construction of C. S., secs. 7339 and 7343 (Phillips v. Salmon River Min. Co., 9 Idaho 149, 72 P. 886; Armitage v. Bernheim, 32 Idaho 594, 187 P. 938; Abernathy v. Peterson, 38 Idaho 727, 225 P. 132) and the fact that the contract contemplated the construction of a sewer in connection with and as part of the houses, bring the performed services in putting in the sewer within the purview of both sections as "performing labor upon, or furnishing materials . . . . used in the construction . . . . of any . . . . building" (C. S., sec. 7339) and improving "any lot in any incorporated city . . . . or the street in front of or adjoining the same." (C. S., sec. 7343; McGill v. McAdoo, 35 Idaho 283, 206 P. 1057; Williams, Belser & Co. v. Rowell, 145 Cal. 259, 78 P. 725.)

As said in Chamberlain v. Lewiston, 23 Idaho 154, 129 P. 1069, which announces a doctrine different than that declared in Fleming v. Prudential Ins. Co., 19 Colo. App. 126, 73 P. 752, upon which appellants rely:

" . . . It is apparent from a number of our statutes authorizing liens of various and sundry kinds that the true test meant to be applied by the legislature is the value of the labor or material furnished and used in or about the construction or other works. . . .

"Considerable has been said both in the briefs and the oral argument as to the extent of lien to be allowed in this case should any lien be allowed at all. The extension pipe and intake were to be constructed out in the bed of the Clearwater river. The work was done there. No work was actually and literally done upon any of the pipe or machinery or any part of the present water system and so it is insisted that whatever lien there is can only attach to the bed of the stream where the work was carried on. This contention overlooks the fact that the contract called for a repair or alteration to the water system and pumping plant which would attach itself to and become a part of the system. The contract called for extending the pipe out into the stream, setting a steel cage there to inclose the intake to the pipe and certain works necessary and essential to the completion of this repair or alteration. This would have been a part of the system had it been...