Volker-Scowcroft Lumber Co. v. Vance

• Decision Date: 26 August 1909
• Docket Number: 2028
• Citation: 36 Utah 348,103 P. 970
• Court: Utah Supreme Court
• Parties: VOLKER-SCOWCROFT LUMBER COMPANY et al. v. VANCE et al

103 P. 970

36 Utah 348

VOLKER-SCOWCROFT LUMBER COMPANY et al. v. VANCE et al

No. 2028

Supreme Court of Utah

August 26, 1909

APPEAL from District Court, Second District; Hon. J. A. Howell Judge.

Action by the Volker-Scowcroft Lumber Company against Mary Flinder Vance and another to foreclose a materialman's lien in which Halverson Bros., appeared, claiming a lien for material and labor.

Judgment of dismissal. Plaintiff and Halverson Bros. appealed.

Former Appeal, 32 Utah 74.

REVERSED AND REMANDED.

Halverson & Pratt for appellant.

APPELLANTS' POINTS.

To the effect that a subsequent selection of homestead cannot affect existing liens, we cite the following: Tuttle v Howe, 14 Minn. 145; Kelly v. Dill, 23 Minn 445; Bowles v. Hoard, 71 Mich. 150; Smith v. Richards (Idaho), 21 P. 419; Robinson v. Wilson, 15 Kan. 595; Stevens v. Stevens, 10 Allen 146; Willard v. Masterson (Ill.), 43 N.E. 771; Henderson Lumber Co. v. Gottschalk, 81 Cal. 64; Mabry v. Harrison, 44 Tex. 286; Willis v. Matthews, 46 Tex. 478; Parsons v. Pearson (Wash.), 36 P. 974.

J. D. Skeen for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

This is an action brought by the Volker-Scowcroft Lumber company to foreclose a materialman's lien. Halverson Bros. appeared in the action, and also claimed and exhibited a lien for materials furnished and labor performed. Among other things it is alleged in the answer by the defendant Vance that prior to and at the time of the letting of the contract for the construction of the building on her lots, and for which the materials were furnished and the labor performed by the lien claimants, she was, and still is, the head of a family, consisting of herself, her husband, and two children, that the lots upon which the building was constructed were her homestead, and that they, with the improvements thereon, did not exceed in value her homestead exemption. The court below sustained plaintiff's demurrer to the answer. The defendant Vance refusing to further plead, the court rendered a judgment in plaintiff's favor, awarded a lien on the real estate, and ordered a sale of the premises in satisfaction of the claims. On the defendant's appeal from that judgment (32 Utah 74, 88 P. 896, 125 Am. St. Rep. 828) we held that the court erred in sustaining the demurrer. We there held that because of the provisions of section 1, article 22, of the Constitution a homestead was not subject to a materialman's or mechanic's lien, in the absence of an express contract pledging the homestead. The judgment of the court below was therefore reversed, and the cause remanded. Thereafter the court tried the case upon the issues, and found that the defendant Vance was the owner of lots 5 and 6 upon which the building was constructed for which the materials were furnished and the labor performed, and found that she also held the legal title to lots 7 to 12, inclusive, adjoining lots 5 and 6 in the same block, but that she had entered into a contract of sale to sell lots 7 to 12 to her son, and that she had received the contract price therefor, which was a reasonable price; "that the said lots 5 and 6 were acquired by the defendant Vance, with the other real estate described (lots 7 to 12) by purchase, and was at all times intended to be, and was used as, a home, and constitutes her homestead exemption"; that she entered into a contract with the defendant Irving Peterson to erect a building on lots 5 and 6 for an agreed price of $ 2175, which sum the defendant Vance paid to Peterson in accordance with the terms of her contract; that the said Irving Peterson purchased building materials of the plaintiff, the Volker-Scowcroft Lumber Company, of the value of $ 774.75, no part of which has been paid except the sum of $ 198.98, and that the said plaintiff filed and claimed a lien against said property for the balance of $ 575.07; that the said Peterson contracted with the lien claimants Halverson Bros. for the plumbing called for by the contract for the erection of said building, and there is due said lien claimants $ 179.75, for which they filed their notice of intention to claim a lien upon said property. The court further found that the defendant Vance was the head of a family consisting of herself, her husband, and a minor child, and that "all of the real estate hereinbefore described (lots 5 to 12), at the time plaintiffs furnished the materials and performed the labor, did not exceed $ 2250 in value (the amount of exemptions which she, under the statute, was entitled to claim in 'lands' as a homestead), and the said lots 5 and 6 do not now with the improvements exceed in value the sum of $ 2250, and that neither the said defendant, nor her husband, has any other homestead, and no member of said family has other property." As conclusions of law the court held that neither lien claimant "was entitled to a judgment of this court against the said defendant Vance," and that neither was entitled to a lien or a sale of the premises in satisfaction of their indebtedness. A judgment was rendered accordingly, and the action dismissed. No service was had on the defendant Peterson.

The plaintiff and Halverson Bros. appeal. They first urge that, though the lien failed, they nevertheless were entitled to a personal judgment against the defendant Vance. On the other hand, it is contended by the respondent that, in an action to foreclose a mechanic's lien, when the lien fails the action also fails, in the absence of an express statutory provision authorizing the rendition of a judgment against the person personally liable. Prior to the Code a personal judgment apart from the granting of equitable relief could not be rendered in an action in equity. As to whether in an action to foreclose a mechanic's lien a personal judgment under our reformed system of procedure can be rendered against the person personally liable, when the lien fails, the authorities divide. (27 Cyc. 433; Boisot Mechanics' Liens, sec. 654.) By some it has been held that a personal judgment can be given if the lien failed because of a noncompliance with some provision of the statute essential to the claim of lien, but not if the lien was absolutely void, or if the claimant at the beginning was not entitled to lien; other courts, holding that a personal judgment may be rendered, make no such distinction. Among the authorities holding that under the reformed procedure no personal judgment can be given in the action to foreclose a mechanic's lien when the lien fails are the following: Hildebrandt v. Savage, 4 Wash. 524, 30 P. 643, 32 P. 109; Jensen v. Brown, 2 Colo. 694, and a number of later Colorado cases, until the amendment of a statute which expressly provided for a personal judgment "when the proceedings will not support a lien." Like rulings have been made by the Supreme Court of Illinois (Green v. Sprague, 120 Ill. 416, 11 N.E. 859), Oregon (Ming Yue v. Coos Bay R. Co., 24 Ore. 392, 33 P. 641), Iowa (Loring v. Small, 50 Iowa 271, 32 Am. Rep. 136), and the Federal Court (Russell v. Hayner, 130 F. 90, 64 C.C.A. 424), but in these jurisdictions the union of legal and equitable primary rights and remedies was held not permissible under the prescribed procedure. In such particular equity and law courts were there regarded as still separate and distinct. In the following cases, among others, it has been held that, under the reformed procedure, a personal judgment could be rendered against the person personally liable, though the lien failed, and though there was no express statute authorizing the rendition of a personal judgment in such case: McCormack v. Phillips, 4 Dak. 506, 34 N.W. 39; Western Plumbing Co. v. Fried, 33 Mont. 7, 81 P. 394, 114 Am. St. Rep. 799; Wyman v. Quayle, 9 Wyo. 326, 63 P. 988; Brugman v. McGuire, 32 Ark. 733; Sullivan Timber Co. v. Brushagel, 111 Ala. 114, 20 So. 498; Smith v. Gill, 37 Minn. 455, 35 N.W. 178; Dollman v. Collier, 92 Tenn. 660, 22 S.W. 741; Ponti v. Eckels, 129 Wis. 26, 108 N.W. 62; Koepke v. Dyer, 80 Mich. 311, 45 N.W. 143.

In Haight v. Schuck, 6 Kan. 192, it was held that a personal judgment could be rendered, because of a provision of the statute giving the lien claimant the right to a deficiency judgment. In all these cases in which it is held that a personal judgment may be rendered though the lien fails it of course is also held that the complaint, in connection with or in addition to the allegations for the foreclosure of a mechanics' lien, must also contain all the necessary facts constituting both ground for relief and all the necessary allegations of an action in assumpsit. In some it is held that the legal and equitable primary rights must be set forth in separate counts, and an actual demand made for both remedies in the prayer for judgment. We think the holding of the courts permitting a personal judgment in the action though the lien fails is supported by the greater weight of authority, and is in harmony with the intent and spirit of our Constitution (article 8, section 19) which provides "that there shall be but one form of civil action, and law and equity may be administered in the same action," and our Code (section 2961, Comp. Laws 1907), which provides that "the plaintiff may unite in the same complaint several causes of action, legal or equitable, or both, where they arise out of: (1) The same transaction, or transactions connected with the same subject of action; or (2) contract express or implied, . . . but the causes of action so united . . . must be separately stated." By section 2960 it is also provided that the complaint "must contain . . . a demand of the relief which the plaintiff claims."

The ruling of the court not awarding a personal judgment against the respondent was, however,...