Wallich Lumber Co. v. Golds, 50

CourtSupreme Court of Michigan
Writing for the CourtADAMS; KAVANAGH
Citation134 N.W.2d 722,375 Mich. 323
PartiesWALLICH LUMBER COMPANY, a Michigan Corporation, Plaintiff and Appellant, v. Sidney GOLDS and Syivia Golds, his wife, Bank of Dearborn, a Banking Corporation, Max Yorke, Nathan Shaye and Maurice Axelrod, a co-partnership, d/b/a Sayme Investment Company, Alex Kramer, and Boston Tile & Terrazzo Company, a Michigan Corporation, Defendants and Appellees.
Docket NumberNo. 50,50
Decision Date10 May 1965

Page 722

134 N.W.2d 722
375 Mich. 323
WALLICH LUMBER COMPANY, a Michigan Corporation, Plaintiff
and Appellant,
v.
Sidney GOLDS and Syivia Golds, his wife, Bank of Dearborn, a
Banking Corporation, Max Yorke, Nathan Shaye and Maurice
Axelrod, a co-partnership, d/b/a Sayme Investment Company,
Alex Kramer, and Boston Tile & Terrazzo Company, a Michigan
Corporation, Defendants and Appellees.
No. 50.
Supreme Court of Michigan.
May 10, 1965.

[375 Mich. 324]

Page 723

Schuur & Keating, Detroit, for plaintiff and appellant.

Jesse W. Bollinger, Dearborn, for defendant Bank of Dearborn.

Glassen, Parr, Rhead & McLean, Lansing, for defendants and appellees, Sidney and Sylvia Golds.

Before the Entire Bench.

[375 Mich. 325] ADAMS, Justice.

This is a suit to determine the validity and priority of a material man's lien. On October 5, 1959, plaintiff began delivery of materials to the home site of defendants Golds. On December 14, 1959, defendants Golds executed a mortgage with the Bank of Dearborn. The trial judge found that some time after April 20, 1960, plaintiff and defendants Golds entered into a written contract for the purchase of the materials which were being and had been supplied.

Page 724

The contract was predated 'October 2, 1959.'

The last delivery of materials was on August 23, 1960. On August 31, 1960, plaintiff filed a claim of lien for $6.250.90. The trial judge found that this was the value of the materials and that they had been used in the Golds' home. Plaintiff filed its bill of complaint and all defendants were served within one year after filing of the claim of lien. Plaintiff did not, however, file notice of lis pendens. Because of failure to do so, the trial judge ruled that plaintiff had no cause of action.

I

The portions of the mechanics' lien law which prompted that decision read as follows:

'Sec. 9. The several liens herein provided for shall continue for 1 year after such statement or account is recorded in the office of the register of deeds, and no longer unless proceedings are begun to enforce the same as hereinafter provided.'--C.L.S.1961, § 570.9 (Stat.Ann.1963 Cum.Supp. § 26.289).

'Sec. 10. Proceedings to enforce such lien shall be by bill in chancery, under oath, and notice of lis pendens recorded in the office of the register of deeds, shall have the effect to continue such lien pending such proceedings.'--C.L.S.1961, § 570.10 (Stat.Ann.1963 Cum.Supp. § 26.290).

[375 Mich. 326] Once a lien attaches, a liberal construction should be made of the statute because of its remedial character. C.L.1948, § 570.27 (Stat.Ann.1953 Rev. § 26.307); Burman v. Ewald, 192 Mich. 293, 295, 158 N.W. 853. A liberal construction is achieved by holding that the lis pendens need not be filed as to those who have actual notice of suit. To hold otherwise would exalt constructive notice over actual notice. See the extensive discussion on this point in Whitehead & Kales Co. v. Taan, 233 Mich. 597, 603-605, 208 N.W. 148. Also, see Vander Horst v. Kalamazoo Apartments Corporation, 239 Mich. 593, 603-605, 215 N.W.57; Hart v. Reid, 243 Mich. 175, 183, 219 N.W. 692, 220 N.W. 717. The trial judge was in error . The filing of a lis pendens was unnecessary as to defendants who had notice of the lien and were sued and served within the one year period.

II

The next question is whether the plaintiff acquired a lien. Defendants Golds' property was held by the entireties. Liens upon such property must meet the requirements of section of the mechanics' lien statute which reads:

'In case the title to such lands upon which improvements are made is held by husband and wife jointly * * * the lien given by this act shall attach to such lands and improvements if the improvements by made in pursuance of a contract in writing signed by both the husband and wife.'...

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23 practice notes
  • Williams & Works, Inc. v. Springfield Corp., Docket Nos. 26617-26619
    • United States
    • Court of Appeal of Michigan (US)
    • February 22, 1978
    ...was Springfield Corporation. Notice is not required where the lien claimants deal directly with the owner. Wallich Lumber Co. v. Golds, 375 Mich. 323, 328-329, 134 N.W.2d 722 (1965); Mielis v. Everts, 264 Mich. 363, 364, 249 N.W. 875, 876 (1933); J. Altman Companies, Inc. v. Saginaw Plumbin......
  • In re Craft, Bankruptcy No. 88-09570
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • June 30, 1989
    ...requirement of furnishing a notice of intent, as obviously the owner knew with whom he had contracted. See Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 (1965); Childers Mfg. Co. v. Altman, 100 Mich.App. 289, 298 N.W.2d 725 (1980); P.H.I. Const. Co. v. Riverview Commons Assoc.,......
  • Burton Drywall, Inc. v. Kaufman, Docket No. 19113
    • United States
    • Court of Appeal of Michigan (US)
    • May 27, 1976
    ...has examined the authority for such an exception, although subsequent cases have explained its rationale. In Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 (1965); the Court considered the priorities between a mechanic's lien and a mortgage. The mechanic's lien was found to have......
  • In re Michigan Lithographing Co., Bankruptcy No. SG 90-80574
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Western District of Michigan
    • February 3, 1992
    ...hold that the filing of a lis pendens is not necessary where there is actual notice of foreclosure (See Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 Even if it could be assumed that the failure to file a lis pendens had the effect under the Mechanic's Lien Act of terminating t......
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23 cases
  • Williams & Works, Inc. v. Springfield Corp., Docket Nos. 26617-26619
    • United States
    • Court of Appeal of Michigan (US)
    • February 22, 1978
    ...was Springfield Corporation. Notice is not required where the lien claimants deal directly with the owner. Wallich Lumber Co. v. Golds, 375 Mich. 323, 328-329, 134 N.W.2d 722 (1965); Mielis v. Everts, 264 Mich. 363, 364, 249 N.W. 875, 876 (1933); J. Altman Companies, Inc. v. Saginaw Plumbin......
  • In re Craft, Bankruptcy No. 88-09570
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Eastern District of Michigan
    • June 30, 1989
    ...requirement of furnishing a notice of intent, as obviously the owner knew with whom he had contracted. See Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 (1965); Childers Mfg. Co. v. Altman, 100 Mich.App. 289, 298 N.W.2d 725 (1980); P.H.I. Const. Co. v. Riverview Commons Assoc.,......
  • Burton Drywall, Inc. v. Kaufman, Docket No. 19113
    • United States
    • Court of Appeal of Michigan (US)
    • May 27, 1976
    ...has examined the authority for such an exception, although subsequent cases have explained its rationale. In Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 (1965); the Court considered the priorities between a mechanic's lien and a mortgage. The mechanic's lien was found to have......
  • Williams & Works, Inc. v. Springfield Corp., Docket No. 28027
    • United States
    • Court of Appeal of Michigan (US)
    • July 6, 1977
    ...the filing of notice of lis pendens. M.C.L.A. § 570.1; M.S.A. § 26.281, M.C.L.A. § 570.9; M.S.A. § 26.289, Wallich Lumber Co. v. Golds, 375 Mich. 323, 134 N.W.2d 722 (1965). Claimants were entitled to priority. Strom Construction Co. v. Raymond, 356 Mich. 79, 95 N.W.2d 879 Defendant claims ......
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