Stoltze v. Hurd

• Decision Date: 17 September 1910
• Citation: 20 N.D. 412,128 N.W. 115
• Parties: STOLTZE v. HURD et al.
• Court: North Dakota Supreme Court

20 N.D. 412

128 N.W. 115

STOLTZE

v.HURD et al.

Supreme Court of North Dakota.

Sept. 17, 1910.

Syllabus by the Court.

When two persons have made a joint contract with a builder for the erection of a building, to be placed on two adjoining lots owned in severalty by each of said persons, and a subcontractor furnishes building material, which is used for the erection of such building under an entire contract with the builder, he is entitled to a joint lien, but not to a separate lien against one lot and the part of the building standing thereon.

Additional Syllabus by Editorial Staff.

A mechanic's lien being a creature of statute, every step prescribed by statute must be shown to have been substantially followed, or the lien does not exist, since, where one seeks to avail himself of the benefits of a purely statutory right, he must bring himself fairly within its provisions by complying with its terms.

Appeal from District court, Ward County; E. B. Goss, Judge.

Action by F. H. Stoltze against H. A. Hurd and others. From orders overruling demurrers to the complaint, defendants appeal. Reversed, with directions.Thompson & Schull and F. B. Lambert, for appellant Hurd. F. B. Lambert, for appellants Roell and Fidelity Mut. Life Ins. Co. C. Aurland, for respondent.

CARMODY, J.

This is an action brought by plaintiff to foreclose an alleged mechanic's lien. The complaint alleges: That the defendant J. A. Roell is the owner of lot 20, in block 7, of the town site of Minot, in Ward county, N. D. That one A. S. Blakey is the owner of lot 21, in said block 7, that said lots are adjoining, and that the defendant Roell and the said Blakey entered into a joint contract with the defendant Hurd for the construction and erection by him, the said H. A. Hurd, for them, upon the said lots 20 and 21, of a three-story brick and stone building. That in pursuance of said contract the defendant Hurd did erect and construct on said lots a three-story brick and stone building. That on or about the 17th day of April, 1907, plaintiff entered into a contract for the sale to the defendant Hurd of certain building material to be by him used in the construction of said building. That plaintiff did furnish defendant Hurd building material of the value of $5,740.48. That prior to the completion of said building the plaintiff duly notified the said A. S. Blakey and the said J. A. Roell, and each of them, that he had furnished said materials to defendant Hurd as aforesaid. That on or about the 10th day of January, 1908, at the request of the defendant Hurd and the said A. S. Blakey, and with the consent of the defendant J. A. Roell, and in consideration of the payment to him of the sum of $3,000 by the said A. S. Blakey, the plaintiff waived his lien upon the said lot 21 and the part of the building thereon standing. That on the 12th day of March, 1908, he filed in the office of the clerk of the district court in and for Ward county a duly verified claim, for the purpose of securing and perfecting a lien for the balance of the moneys due him for the materials so furnished on said lot 20 and the building thereon standing. That subsequently $407 was paid by defendant Hurd to this plaintiff. That on the 14th day of July, 1908, for the purpose of further perfecting his lien, he filed, as supplementary and amendatory to the lien statement filed on March 12th, his supplementary and amendatory claim therefor.That the whole of said lot 20 is required for the convenient use and occupation of said building. That the defendants, and each of them, claim to have some interest in, or lien or incumbrance upon, the said premises, which, if any there be, the plaintiff alleges are subsequent and subject to his lien. That there is due and owing the plaintiff from the defendant Hurd the sum of $2,224.40. Plaintiff asks judgment for that amount, for the foreclosure of his lien, that the rights and interests of the defendants, and each of them, in said premises be determined, if any they have, and the same be decreed to be subject and subsequent to the lien of the plaintiff, for the sale of the said lot 20 and the building thereon standing, and for a deficiency judgment against the defendant Hurd.

To this complaint defendant Hurd interposed the following demurrer: “Comes now the defendant H. A. Hurd, and demurs to the complaint of the plaintiff herein on the ground that two causes of action have been improperly united in said complaint; and demurs to the complaint on the further ground that said complaint does not state facts sufficient to constitute a cause of action against this defendant; and on the further ground that the court has no jurisdiction of the subject of the action.” The defendants J. A. Roell, Margaret Roell, and the Fidelity Mutual Life Insurance Company demurred to the complaint as follows: “(1) That there is a defect of parties defendant; (2) that several causes of action have been improperly united; (3) that the complaint does not state facts sufficient to constitute a cause of action.” Both of these demurrers were overruled. From the orders overruling said demurrers, separate appeals were taken to this court, which appeals were submitted together. Defendants assign as error the overruling of the demurrers.

Section 6238, Rev. Codes 1905, reads as follows: “If labor is done or materials furnished under a single contract for several buildings, erections or improvements, the person furnishing the same shall be entitled to a lien therefor as follows: (1) If such buildings, erections or improvements are upon a single farm, tract or lot upon all such buildings, erections and improvements and the farm, tract or lot upon which the same are situated. (2) If such buildings, erections or improvements are upon separate farms, tracts or lots, upon all such buildings, erections and improvements and the farms, tracts or lots upon which the same are situated; but upon the foreclosure of such lien the court may in the cases provided for in this subdivision apportion the amount of the claim among the several farms, tracts or lots in proportion to the enhanced value of the same produced by means of such labor or materials, if such apportionment is necessary to protect the rights of third persons.”

The doctrine is...