United States Blowpipe Co. v. Spencer
| Citation | 40 W.Va. 698 |
| Parties | United States Blowpipe Co. v. Spencer |
| Decision Date | 17 April 1895 |
| Court | Supreme Court of West Virginia |
A lien is the ligament or tie which binds certain property to a particular debt for its payment or satisfaction.
What is known as the "mechanic's lien" on real estate and buildings is the creation of statute. It was unknown at commonlaw, but the right given by statute to enforce it in a court, of equity carries with it all the rights incident to that court's principles and rules and its methods of procedure.
Such lien can be maintained only by a substantial observance of and compliance with the requirements of the statute, but the statute is given a fair and and liberal construction as to the creation of the lien and its enforcement.
In ascertaining whether the account which is required to be filed and recorded to create the lien is a substantial compliance with the statute in respect to designating the name of the owner of the property, the account proper, and the sworn statement annexed thereto, may be read together.
Section 4 of chapter 75 of the Code, which requires a just and true account of the amount due after allowing all credits, to be sworn to and filed for record, uses the term "due" in the sense of an existing liability, without reference to whether it be then matured and enforceable by suit or not matured and not then enforceable by suit.
A bill framed with a double aspect, but upon consistent states of facts, praying relief in the alternative, is not for that reason open to objection.
Tomlinson & Wiley for appellant, cited Code 1891, p. 653; Phil. Mech. Lien (2d Ed.) 27, 583; 4G Mo. 595; Id. 337; 9 Nev. 219; 48 Miss. 360; 30 Ark. 573; 4 W. & S. 458; 52 Ala. 256; 2 Swan, 313; 4 Col. 251; 7 Cal. 358; 72 Me. 422; 4 W. Va. 600; 15 Am. & Eng. Enc. Law 165, 167, 168; 116 Mass. 376; 46 Am. Dec. 327; Pac. Rep. 810; 67 Me. 548; 6 Pet. 36; 24 N. Y. 283.
Ciias. E. Hogg for appellee, cited 88 Ind. 307; 29 Cal. 283; 39 N. J. L. 139; 2 Hill 365; 8 Blackf. 252; 5 Blackf. 329; 21 111. 431; 3 111. 472; 1 W. Va. 249; 1 Bouv. Law Diet. Tit. Due, p. 512; Drake Attack. (7th Ed.) §§ 27-33; Code, c. 106, s. 1; Id. c. 50, s. 121; 8 W. Va. 384; 33 W. Va. 65; 10 S. E. Rep. 36; 37 W. Va. 641; 2 Cal. 90; 2 Greene 508; 10 Md. 257; 3 Minn. 86; 18 Miss. 627; 37 Pa. St. 125; 50 N. Y. 300; 45 Ga. 159; 46 Tex. 196; 77 N. C. 77; 33 Mo. 390; 35 Mo. 107; 45 Ind. 258; 36 N. Y. (Sup. Ct.) 337; 30 Ark. 682; 57 Ind. 262; 58 Ind. 477; 52 Tex. 621; 8 Mo. App. 566; 83 Mo. 313; 40 111. 62; 21 S. \V. Rep. 471; 62 Iowa 280.
J. S. Spencer For appellees, cited 10 W. Va. 251; 28 W. Va. 623, 629; 30 W. Va. 274; 29 Gratt. 125; 1 Bart. Ch. Pr. 256; Sto. Eq. PI. § 530; 11 W. Va. 238; 20 W. Va. 210; 30 W. Va. 248, 269; 31 W. Va. 601; 20 Gratt. 296; Adams Eq. 311 (margin); 2 Jones Liens, § 1588 and cases cited; Phil. Mech. Liens (3d. Ed.) §§ 402, 409; 15 Am. & Eng. Enc. Law 156 and authorities cited; 33 W. Va. 63; Code, c. 75, s. 4; 8 W. Va. 384; 9 W. Va. 231; 42 N. W. 358; 2 Jones Liens § 1397 and cases cited; Phil. Mech. Liens (3d Ed.) § 345 and cases cited; 22 Neb. 656; 59 Md. 409; 35 Minn. 192; 28 Minn. 404; 43 Cal. 515; 2 Idaho 1164; 15 Am. & Eng. Enc. Law 138 and authorities cited; 18 W. Va. 593; 15 Am. & Eng. Enc. Law 140, note 4; Phil. Mech. Liens (3d. Ed.) § 366; 2 Jones Liens, §§ 1554-5 ami notes; 38 Mich. 587; Phil. Mech. Liens (3d Ed.) § 14; Code, c. 139, s. 5; 27 W. Va. 500; 18 W. Va. 586, 596; 37 W. Va. 59, 571; Hutch. W. Va. Treatise, § 958, form 250; Phil. Mech. Liens (3d. Ed.) 598; 2 Jones Liens, § 1390; 37 W. Va. 643; 38 W. Va. 596, 701; Bouv. Law Diet. Title Due; 17 Wis. 181.
Holt, President:
This is a suit in equity brought in the Circuit Court of Mason county on the 19th day of December, 1892, by plaintiff against J. S. Spencer, the Point Pleasant Furniture Company, etc., to enforce a mechanic's lien against the property of the furniture company and for other relief.
On the 10th day of May, 1893, four of the defendants suggested the non-residence of plaintiff, and required security for costs; and, the security having been given, they demurred to plaintiff's bill. The court sustained the demurrer, and plaintiff desiring to amend, on its motion the cause was remanded to rules for that purpose. The amended bill having been filed, and the cause again on the court docket for hearing, the same four defendants demurred to the amended bill. The court, on December 19, 1893, sustained the demurrer, and the plaintiff declining to further amend, the bill and amended bill were dismissed, with costs, and this appeal was allowed the plaintiff. The grounds of demurrer are:
First. The bill and amended bill are multifarious.
Second. Plaintiff does not, by its xdeading, show itself to have a valid mechanic's lien; has not complied with the statute, and therefore has nothing that fastens the claim to the property for its satisfaction; is a mere creditor at large, with no standing in a court of equity as a lienor against the property in question.
In our clam eery practice it is usual in an amended bill to introduce supplementary matter, if necessary, without any additional designation of the bill itself. The bill is taken for what it shows itself to be, without regard to the name that may be given it. The plaintiff may, at any time before or after the appea ranee of the defendant, in the vacation of the court, file in the office an amended bill or supplemental bill, and have a summons to answer it. But if the court shall be of opinon that the same was improperly filed, it will dismiss such bill, at the costs of the plaintiff. This is done on motion, not by demurrer.
The scheme of the original bill is: That plaintiff has a mechanic's lien on the real property of the Point Pleasant Furniture Company for one thousand seven hundred and twelve dollars and fifty cents, duly recorded on July 12, 1892, but that the furniture company had, on the 11th day of December, 1891, by deed of trust of that date, conveyed its property to defendant J. P. R. B. Smith, trustee, to secure the payment of four notes one for two thousand eight hundred and seven dollars, to J. J. Bight; and three others, making five thousand dollars in all payable in ten years from that date, but interest payable annually. The trustee was authorized to sell under the deed of trust for cash in default of payment of principal when due, or of interest, or on failure of the furniture company to keep the property insured to at least the amount of five thousand dollars. That the trustee, in violation of his trust, without giving the notice required by law, and before the trust was due, viz. on the 5th day of December, 1802, sold the property, not for cash, but on credit, to defendant James P. Hayes for nineteen thousand three hundred dollars, a grossly inadequate price. That the property sold was worth at least fifty thousand dollars. That although the sale was for cash, yet there was a contract and agreement between the trustee and defendant Hayesby which Hayes was to pay only a part of the purchasemoney in cash, and the balance on time, thus giving Hayes, the purchaser, an unfair advantage over the other bidders, which ought not to have been permitted. That defendant Hayes paid but a part of the purchase-money, and has failed and refused to comply with the terms of sale. That the trustee has failed and refused to pay plaintiff's mechanic's lien, and the mechanic's lien of the defendant the Moore Carving Machine Company, amounting to one thousand two hundred and sixty two dollars. Plaintiff prayed that the sale under the deed of trust might be set aside, and the property legally and properly resold; and after payment of the debts secured by the trust deed, plaintiffs' claim should be next paid; but if the sale made by the trustee should be held to be legally and properly made, that in that event the trustee should be directed to pay the mechanic's lien next after the debts secured by the deed of trust; and for general relief. The same allegations are repeated in the amended bill, with the additional allegation that on the 6th day of February, 1893, a judgment was rendered in favor of plaintiff against the defendant the Point Pleasant Furniture Company for one thousand seven hundred and seventy two dollars and thirty cents, being on the same account for which it had its said mechanic's lien; and on the same day a judgment was rendered against said furniture company in favor of defendant the Moore Carving Machine Company for one thousand two hundred and ninety five dollars: and fifty five cents, the same account for which it had said mechanic's lien. Of these judgments copies are filed as exhibits. That the trustee has, since the sale, and out of the proceeds, paid off all the other liens, viz. the defendant Tinsley, the Bradford Milling Company, the Buss Machine Works, the Lane & Bodley Company, and Laidlaw & Dunn Company, although all their liens were subsequent to the lien of plaintiff and the lien of the Moore Machine Company, and that there is still left in the hands of the trustee the sum of three thousand and twenty six dollars and seventy five cents.
This did not have the effect to render the bill multifarious. 'y I know of no reason why plaintiff might not properly have obtained against its debtor the furniture company a judgment at law for its claim, as was done in this case. Such was its right whether the mechanic's lien was valid or invalid. It obtained such judgment without objection. Why should it not inform the court that it had obtained a judgment at law against its debtor for such claim, which it had been and was seeking by its original bill to enforce as a mechanic's lien? It did not and could not affect the mechanic's lien....
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