Wallace v. Brumback

• Decision Date: 13 January 1941
• Docket Number: Record No. 2299.
• Citation: 177 Va. 36
• Court: Virginia Supreme Court
• Parties: G. B. WALLACE, ET AL. v. T. J. BRUMBACK, ET AL.

Page 36

177 Va. 36

G. B. WALLACE, ET AL. v. T. J. BRUMBACK, ET AL.

Record No. 2299.

Supreme Court of Virginia, Richmond.

January 13, 1941.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. MECHANICS' LINES — In General — Creature of Statute. — A mechanic's lien is purely a creature of statute.

2. MECHANICS' LIENS — Requisites — Perfection in Time and Manner Required by Statute. — While one who purchases property pending the construction of a building takes it subject to the risk that a lien may thereafter be perfected thereon, unless such lien is perfected within the proper time and in the proper manner, as outlined by the statute, it is lost.

3. MECHANICS' LIENS — Requisites — Knowledge of Construction of Building Cannot Take Place of Statutory Requirements. — Since the very existence and continuation of a mechanics' lien, as well as the jurisdiction of the court to enforce it, rest upon compliance with the statute and not upon equitable principles, knowledge by a purchaser or lienor of the construction of the building cannot take the place of the statutory requirements.

4. MECHANICS' LIENS — Filing and Recordation of Claim — Section 6427 of the Code of 1936 — Must Be Read with and as Part of Registry Act. — The provision in section 6427 of the Code of 1936 for perfecting a mechanic's lien by the recordation of the memorandum and the indexing of the same must be read in connection with and as a part of the registry act, chapter 210 of the Code of 1936, which provides for the recordation of certain writings in order to give constructive notice thereof to interested parties.

5. MECHANICS' LIENS — Filing and Recordation of Claim — Section 6427 of the Code of 1936 — Purpose of Provision for Indexing Claim in General Index of Deeds. — The provision in section 6427 of the Code of 1936 for indexing the memorandum or claim of a mechanic's lien in the general index of deeds in the name of the owner of the property was intended for the protection of a purchaser who might acquire the property after the perfection of the mechanic's lien, or a subsequent lienor who might be affected thereby.

6. MECHANICS' LIENS — Filing and Recordation of Claim — Section 6427 of the Code of 1936 — Purpose of Provision for Indexing Claim in General Index of Deeds. — The provision in section 6427 of the Code of 1936 for indexing mechanics' liens in the general index of deeds was intended to conform the recordation or registration of such liens with the recordation or registration of deeds of trust and like liens which are required to be indexed in the same manner under the registry act.

7. MECHANICS' LIENS — Filing and Recordation of Claim — Section 6427 of the Code of 1936 — "Owner" Means Owner at Time of Recordation. — The owner of the property referred to in section 6427 of the Code of 1936, providing that in order to perfect a mechanic's lien there must be filed a memorandum showing the name of the owner of the property sought to be charged, means the person who owns the property, or the interest therein to be affected, at the time of the recordation of the memorandum of the mechanic's lien.

8. MECHANICS' LIENS — Property Subject to Lien — Equitable Estate. — A mechanic's lien may be perfected on an equitable as well as on a legal estate.

9. MECHANICS' LIENS — Notice to Owner — Meaning of "Owner" in Sections 6428 and 6429 of the Code of 1936. — Under section 6428 of the Code of 1936, providing that a subcontractor may perfect his lien by filing a memorandum similar to that required by section 6427, and in addition thereto by giving "to the owner of the property or his agent" written notice of the amount and character of his claim, and under section 6429, providing that one who furnishes materials to a subcontractor perfects his lien by filing a memorandum similar to that required under section 6427, and in addition thereto by giving "to the owner of the property or his agent" and to the general contractor or his agent written notice of the amount and character of his claim, the "owner" is the same person referred to in section 6427.

10. MECHANICS' LIENS — Filing and Recordation of Claim — Naming Prior Owner as Owner of Property — Case at Bar. — The instant case was a suit to enforce mechanics' liens on two lots and the buildings thereon. Memoranda of the liens were filed within the proper time and named as owners the parties to whom the materials were furnished and who were the owners of the property at the time the materials were furnished. After the claimants had furnished the materials the lots were conveyed to another party and prior to the filing of the memoranda were conveyed by this grantee to a third party. The trial court sustained a demurrer to the bill on the ground that the liens were invalid and unenforceable because they had not been perfected as required by section 6427 of the Code of 1936, in that the recorded memoranda of the liens had named the original owners as the owners of the properties, whereas they should have named the owner of the properties at the time the memoranda were filed.

Held: No error.

Appeal from a decree of the Circuit Court of Arlington county. Hon. Walter T. McCarthy, judge presiding.

The opinion states the case.

W. W. Butzner, for the appellants.

Harry R. Thomas, Jesse, Phillips & Klinge, Caldwell C. Kendrick and Ernest T. Gearheart, Jr., for the appellees.

EGGLESTON, J., delivered the opinion of the court.

In October, 1938, Clyde H. Brumback held the title to two lots, numbers 132 and 113, in section 2, on the plat of Woodlawn Village, in Arlington county, which were in fact owned by him and his two brothers, T.J. and K. A. Brumback.

From October 21, 1938, to May 29, 1939, G. B. Wallace and George W. Herring, partners trading as Wallace & Herring, furnished to the Brumbacks materials which were used in the construction of a house on lot number 132.

From March 15 to June 21, 1939, Wallace & Herring likewise furnished the Brumbacks materials which were used in the construction of a house on lot number 113.

None of the materials were paid for and on September 22, 1939, and within the proper time, Wallace & Herring filed in the clerk's office of the Circuit Court of Arlington county separate memoranda of mechanics' liens on the two lots and the buildings thereon. Both memoranda stated that "T. J. Brumback, K. A. Brumback and Clyde H. Brumback, owners," were indebted to the claimants for the cost of materials furnished on the buildings erected on the respective lots and claimed mechanics' liens thereon.

In the meantime, after the claimants had furnished the materials and the buildings had been commenced, by deed dated March 19 and recorded on July 12, 1939, Clyde H. Brumback conveyed both lots and the buildings thereon to Paul F. Kassell. By deed dated July 12 and recorded on August 21, 1939, Kassell and wife conveyed the two lots with the buildings thereon to Alda R. Smith, the wife of L. C. Smith. As a part of the consideration for this conveyance, L. C. Smith agreed in writing to pay off and discharge all valid liens against the properties.

In addition to these conveyances, pending the construction of the buildings, Clyde H. Brumback encumbered the properties by several deeds of trust, the details of which are not pertinent to the present inquiry.

Within the proper time Wallace & Herring filed a bill to enforce the mechanics' liens on the two lots and the buildings thereon. The Brumbacks, Kassell, Alda R. Smith and L. C. Smith, her husband, and the trustees in the several deeds of trust were made parties defendant. The bill prayed that the mechanics' liens be enforced and that the claimants be given "a personal judgment against the owners of the property on whose order the material for the said two houses was furnished, and also against L. C. Smith on his undertaking to pay off the liens against the said two houses."

Alda R. Smith, the present holder of the legal title to the properties, and the trustees in the several deeds of trust filed separate demurrers to the bill, alleging that the mechanics' liens were invalid and unenforceable because they had not been perfected as required by statute (Code 1936, ¶ 6427); that the recorded memoranda of the liens claimed had named the Brumbacks as the owners of the properties, whereas they should have named Alda R. Smith who was the owner at the time the memoranda were filed.

The trial court adopted this view, sustaining the demurrers, and entered a final decree dismissing the bill.

1-3 A mechanic's lien is purely a creature of statute. Cain Rea, 159 Va. 446, 452, 166 S.E. 478. While one who purchases property pending the construction of a building takes it subject to the risk that a lien may thereafter be perfected thereon, unless such lien is perfected within the proper time and in the proper manner, as outlined by the statute, it is lost. Knowledge by a purchaser or lienor of the construction of the building can not take the place of the statutory requirements. For the very existence and continuation of the lien, as well as the jurisdiction of the court to enforce it, rest upon compliance with the statute and not upon equitable principles. Feuchtenberger Williamson, 137 Va. 578, 584, 585, 120 S.E. 257; Coleman Pearman, 159 Va. 72, 79, 80, 165 S.E. 371.

Therefore, the sole question before us is whether the liens here involved were perfected in the manner prescribed by statute. If they were properly perfected they are valid and enforceable and the demurrers should have been overruled. If, on the other hand, the liens were not properly perfected they have lapsed and the appellants have no standing in the proceeding brought to enforce them.

Code, ¶ 6426 (as amended by Acts 1922, chapter 498, page 867; Acts 1932, chapter 161, page 332), provides that all persons performing labor or furnishing materials of the value of $10 or more for the construction, removal, repair or improvement of any building,...