Stoneberger v. Davis

• Decision Date: 28 February 1952
• Docket Number: No. 9199-,9199-
• Citation: 51 N.W.2d 873,74 S.D. 300
• Parties: STONEBERGER v. DAVIS et al. a.
• Court: South Dakota Supreme Court

Page 873

51 N.W.2d 873

74 S.D. 300

STONEBERGER v. DAVIS et al.

No. 9199-a.

Supreme Court of South Dakota.

Feb. 28, 1952.

Helm & Bottum, Sturgis, for appellants.

Clinton G. Richards, Deadwood, for respondent Carl Stoneberger.

Parker & Parker, Deadwood, for respondent E. J. Haney.

ROBERTS, Judge.

This action was instituted by Carl Stoneberger to enforce a mechanic's lien against certain land and the buildings thereon upon which it was claimed lienable improvements were made. E. J. Haney was joined because he had filed a similar claim. On July 3, 1939, defendant Ed A. Johnson leased the premises upon which there were no improvements to defendant John F. Davis for a term of 25 years. By the terms of the lease the lessee was authorized to construct buildings and make improvements on the premises and was expressly granted the 'right to remove from the premises * * * all the buildings, machinery, fixtures, and other property * * * erected or placed on the premises' and it was agreed that the same be 'regarded as personal property'. A number of cabins and an automobile service station were erected by Davis. On April 5, 1949, Davis subleased the premises for a term of three years to defendant Central City Company. The sublessee made rather extensive changes and improvements. The trial court found that the lien claimants performed labor and furnished materials for remodeling and improving certain buildings on the premises and determined the respective amounts due them. It was further found that defendants Johnson and Davis had knowledge of the making of the improvements and neither gave nor posted notice that the improvements were not made at their instance. The court decreed that claimants were entitled to liens on the land and all appurtenances thereon and entered judgment for foreclosure of the liens.

In this court defendants Johnson and Davis challenge the findings, conclusions of law and the judgment entered as not sustained by the evidence. Defendant Central City Company has not appealed. Appellants contend that the buildings on the premises in question by terms of the lease never became a part of the realty; that respondents had notice of its terms and that of the sublease which were duly recorded in the office of the register of deeds; that the structures upon which respondents bestowed labor and materials were for that reason personal properties; and that claimants did not preserve their liens because of their failure to mail a copy of the lien statement to the property owner and to file the post office receipt as proof of mailing in the office of the register of deeds as required by statute.

As to a lien upon real property it ceases at the end of ninety days after doing the last of the work or furnishing the last item of material unless within that time a statement showing that a lien on certain property is claimed is filed with the register of deeds. SDC 39.0708. The preservation of a lien upon personal property not only requires the filing of such a statement within a period specified but also the mailing of a copy of the statement to the property owner at his last known post office address by registered mail and the attaching of the post office receipt for mailing to the lien statement and the filing thereof with the register of deeds. SDC 39.0803. Compliance with these statutory requirements is essential to the preservation of a lien. Botsford Lumber Co. v. Schriver, 49 S.D. 68, 206 N.W. 423; Larson v. Anderson, 53 S.D. 236, 220 N.W. 498. If appellants are correct in their contention that respondents acquired liens under the statute permitting enforcement against personal property, the mere filing of the statement was not sufficient and the liens terminated.

The statute, SDC 39.0701, under which the liens herein are claimed, provides: 'Whoever shall, at the request of the owner or the duly authorized agent or representative of the owner, * * * furnish skill, labor, services, * * * or materials for the improvement, development, or operation of property as hereinafter specified, shall have a first lien thereon and the appurtenances thereto, * * * for the price or value of the same, so furnished, subject to the further provisions of this chapter, as follows:

'(1) For the erection, alteration, repair, or removal of any building, fixture, bridge, fence, or other structure * * * a lien upon the said improvement and the land on which it it situated, or to which it may be removed'.

We think that the word 'owner' in the provisions quoted is not intended as meaning only the owner of the fee, but extends to any right, title or interest in which the owner of the buildings or improvements may have in the land on which it is situated. See Lord v. Black Hills Min. Corporation, 68 S.D. 79, 298 N.W. 677. SDC 39.0720 impliedly recognizes that a mechanic's lien may attach to and be enforced against a leasehold estate. This section provides that when a foreclosure sale is made of a leasehold of which the unexpired term is no more than two years the sale is without redemption. There can be no doubt that a lessor and lessee may be agreement treat as personal property improvements which would otherwise be a part of the realty and thus between...