Rice v. Carmichael

• Decision Date: 13 November 1893
• Citation: 4 Colo.App. 84,34 P. 1010
• Parties: RICE v. CARMICHAEL et al.
• Court: Colorado Court of Appeals

34 P. 1010

4 Colo.App. 84

RICE v. CARMICHAEL et al.

Court of Appeals of Colorado

November 13, 1893

Appeal from district court, Arapahoe county.

Action by Margaretta G. Rice against Eliza Carmichael and others to foreclose a mechanic's lien. From a judgment for defendants, plaintiff appeals. Affirmed.

C.H Burton, for appellant.

Bartels & Blood, for appellees.

REED J.

Appellant brought suit against appellees and one John Hart and William W. Anderson to establish and enforce a mechanic's lien against certain property in the city of Denver for a balance of $808.99 alleged to be due her for building material used in the construction of houses. It is alleged that prior to the 17th of April, 1890, one Lydia L. Foster was the owner of the lots. Shortly after that date she conveyed the lots to John Hart, and on the 7th of June, 1890, Hart conveyed the lots to William W. Anderson, who was alleged to have been, at the time of the filing of the complaint, the owner of the property, subject only to the lien of plaintiff. Prior to the 7th day of June, 1890, Hart had commenced the erection of some buildings upon the lots, which were in course of construction at the date of his conveyance to Anderson. Hart continued the construction of the buildings, which were completed about the middle of September, 1890. At the time Hart made the conveyance to Anderson it was agreed that he was to continue the erection and construction of the building and complete it; "that appellant was informed and believed that, as part of the transaction between Hart and Anderson, Anderson was to pay appellant for material furnished for the building;" that on the 7th day of July, 1890, Anderson informed the plaintiff that he was the owner of the lots, and paid plaintiff the sum of $200 on account of the material furnished; that on the 9th day of September, 1890, there was due from Hart to plaintiff the sum of $1,024.99, less a discount of $16 and $200 paid by Anderson, leaving the amount unpaid $808.99. On the 9th of October, plaintiff made and filed a statement for a mechanic's lien, directed to William W. Anderson (owner,) stating that the name of the person owning the property to be charged with the lien was William W. Anderson stating her own name as the person who furnished the material, naming John Hart as the contractor, and describing the property in which the material was used, the amount and value of the material furnished, and of credits and balance due, which is subscribed by the plaintiff. Attached to such statement was drawn a jurat or verification, which was also subscribed by the plaintiff, but not sworn to. Before the filing of such lien and statement, a copy of the same was served on William W. Anderson. On March 31, 1891, it is alleged that the lien and statement were verified and sworn to by the plaintiff, and on the same date refiled for record. There are various allegations contained in the complaint which need not be stated or examined for the purpose of deciding the questions at issue. There were other subsequent conveyances, by warranty and trust deeds, under which appellees claim rights and interest in the property. Appellees and John Hart filed demurrers to the complaint "for the reason that said amended complaint does not state facts sufficient to constitute a cause of action against said defendants, or any of them." After hearing, the demurrers were sustained. Plaintiff standing by the complaint, judgment was entered for defendants, from which an appeal was brought to this court.

The act of 1889 provided, (Sess.Laws 1889. p. 249:) "Any person wishing to avail himself of the provisions of this act shall file for record, in the office of the county recorder of the county wherein the property to be affected by the lien is situated, a statement containing: *** Fourth. *** Such statement shall be signed and sworn to by the party claiming such lien. *** In order to preserve a lien for work performed or materials furnished by a subcontractor there must be served upon the owner of the property, *** at or before the time of filing with the county clerk and recorder the statement above provided for, a copy of such statement." It is conceded that the statement filed October 9, 1890, was not verified, and that the copy served upon Anderson was a copy of that unsworn paper. ...