Wees v. Elbon
| Decision Date | 26 February 1907 |
| Citation | 56 S.E. 611,61 W.Va. 380 |
| Parties | WEES v. ELBON et al. |
| Court | West Virginia Supreme Court |
Submitted January 15, 1907.
Syllabus by the Court.
This court has no jurisdiction to review the decree of a circuit court in a suit to enforce the payment of laborers' mechanics', or materialmen's liens, where such liens are separate and distinct and arise out of separate and distinct contracts, either upon the petition of the owner of the property or of such lienors, except as to those liens decreed each of which exceed the sum of $100.
Such liens are purely creatures of the statute, and every neces sary step prescribed in order to perfect such liens must be pursued in order to make them a charge against the property of the owner.
It is not necessary that such liens should show on the face of the record thereof in the clerk's office of the county court that such lienor has, within the 35 days prescribed by section 3 of chapter 75 of the Code of 1899 [[Code 1906, § 3112], filed with the owner or his authorized agent a verified account thereof, as prescribed by said section; but when such fact is put in issue by the pleadings, the burden of establishing the same by proper evidence is upon the one claiming the benefits of the lien, and his failure to thus establish such necessary fact will defeat the lien.
Appeal from Circuit Court, Randolph County.
Action by P. H. Wees against R. E. Elbon and others. From a decree in favor of defendants, plaintiff appeals. Reversed in part and remanded.
W. B Maxwell, for appellant.
C. W. Maxwell, for appellees.
The appellant, the owner of a certain lot in the city of Elkins and the house then recently constructed thereon, filed his bill in the circuit court, against Mrs. R. E. Elbon, the principal contractor, and the several subcontractors who had labored and furnished material for the construction of said house, and others, for the purpose, among other things, of enforcing the provisions of the building contract, and to have sold for the relief of his own property against the claims and liens of these subcontractors certain mill buildings on adjoining lots and certain machinery therein, which by said contract the plaintiff had agreed to sell to Mrs. Elbon in consideration for the building of said house, the title to which mill buildings and machinery he had reserved to secure performance of said contract. The bill of the plaintiff put in issue the sufficiency of the notices to him by these subcontractors, and also otherwise contested the validity of their liens against his property. Mrs. Elbon, the principal contractor, and all the subcontractors, except the W. C. Russell Lumber Company, answered the bill, asserting the validity of their several liens, exhibiting certified copies thereof, and praying that their answers to the bill might be treated as a suit to enforce the same against the property of the plaintiff. Besides these objects of the suit, the bill sought also to enforce the execution of a certain deed of trust dated September 11, 1901, executed by Mrs. R. E.
Elbon and H. C. Elbon, her husband, to W. H. Cobb, trustee for C. W. Maxwell, covering five lots in the town of Huttonsville and a certain Ray & Egan Company No. 4 planer, to secure the said Maxwell the payment of a note for $435, which note and deed of trust the plaintiff had purchased from Maxwell prior to the institution of the suit, and which planer at the time of the contract with the plaintiff had been removed by Mrs. Elbon from Huttonsville into the said mill buildings at Elkins, and on which planer Mr. and Mrs. Elbon on the day of the contract executed to the appellant a deed of trust to secure him the payment of $250, damages stipulated in the contract for the noncompliance therewith. The bill also called for the execution of this last-mentioned deed of trust. It is unnecessary upon this hearing to give a more detailed statement of the pleadings and proceedings in the cause.
On the filing of the answers on October 14, 1902, this cause, together with the case of the Patapsco Oil & Grease Company v. R. E. Elbon, was referred to a commissioner, who was directed to ascertain and report certain matters referred to him. The commissioner having made out and filed his report about the 1st day of May, 1903, the said causes were brought on on the 7th day of May, 1903, to be heard together, upon the papers and decrees and the report of the commissioner, with the exceptions thereto of the plaintiff and of the defendants A. McCauley, Lloyd Lantz, A. A. Talbott, and L. C. Poling. By his report the commissioner reported and allowed as liens upon the house and lot of the plaintiff the following claims: D. R. Martin, $12.02; A. L. Watkins, $16.64; Z. Kendall & Son, $16.41; R. M. Isner, $61.08; W. W. Steffey, $6.27; L. C. Wolf, $20.22; E. W. Blake, $7.05; W. C. Russell Lumber Company, $240; W. A. Bailey, $14.90--aggregating $394.59. But the commissioner rejected and refused to allow as liens on the house and lot of the plaintiff the claims of A. McCauley, $78.87; A. A. Talbott, $69.91; L. C. Poling, $16.75; and Lloyd Lantz, $47.60--on the ground that Wees, prior to their doing any work or furnishing any material for said house, had notified them not to do so if they expected to look to him for their pay or to rely upon mechanics' liens upon his house. The report of the commissioner, among other things, also allowed to the plaintiff the sum of $250 damages for defects in the house built for him by Elbon, and that he also held the title to the buildings on the adjoining lots Nos. 97 and 98 and the machinery therein until the $250 damages should be paid him. The plaintiff excepted to that part of the commissioner's report which allowed to the W. C. Russell Lumber Company $240, because not proven, and also to that part of the report which allowed to the said R. M. Isner, Z. Kendall & Son, and W. W. Steffey the sums reported in their favor. Messrs. Lantz, Poling, McCauley, and Talbott excepted to that part of the report of the commissioner which disallowed their claims as mechanics' liens upon the property of the plaintiff. There were no other exceptions to the report.
By the final decree appealed from, the circuit court, in accordance with the report of the commissioner. decreed plaintiff the sum of $505.57 with interest, as a first lien upon the five lots in Huttonsville and the Ray & Egan Company planer, etc., and also fixed other liens upon said lots in the order of priority reported by the commissioner, and further that there was due to the plaintiff the sum of $250 with interest as a first lien upon the machinery and buildings which the plaintiff contracted to sell to R. E. Elbon and a lien second in priority upon the Ray & Egan Company No. 4 planer, to be paid out of the proceeds of the sale thereof. The court also decreed that there was due from R. E. Elbon to D. R. Martin and the other lienors whose liens were reported by the said commissioner, including the claim of the W. C. Russell Lumber Company, the several sums with interest as reported by the commissioner, and that said sums constituted mechanics' and materialmen's liens upon the plaintiff's house and the lot upon which the same stood; but that, under the circumstances connected with the performance of the labor and providing material for said house, the court was of the opinion that said lienors should first look to the machinery which the plaintiff contracted to sell R. E. Elbon before there should be a sale of the house and lot, and accordingly adjudged, ordered, and decreed that such liens should be paid without priority as between themselves, and third in the order of priority, out of the proceeds of the sale of said sweepstakes planer, moulder, turning lathe, and other machinery which the plaintiff contracted to sell to R. E. Elbon, and as a fourth lien in priority upon the Ray & Egan Company planer No. 4; and as to the debts of said McCauley, Talbott, Poling, and Lantz the court decreed that the same were not mechanics' or materialmen's liens upon the house and lot of the plaintiff, but that equitably they should be paid the amounts due to them respectively out of the proceeds of the sale of the machinery gotten by Elbon from Wees in consideration of building said house, and that they should be paid the amounts due to them, respectively, before the mechanics' liens thereby decreed in favor of the parties who had no notice from the plaintiff that he would not be liable therefor, and that without priority as among themselves they should be paid pro rata out of the proceeds of the sale of said machinery after the debts thereinbfore decreed in favor of the plaintiff were fully paid. And the report of the said commissioner, as thus modified, was approved and confirmed. The plaintiff's exceptions were overruled, and the exceptions of the defendants sustained.
It will be observed that this decree does not specifically adjudge that the mechanics' and materialmen's liens of D. R Martin and others, or the equitable rights of the said McCauley, Talbott, Poling, and Lantz, attached to the buildings which plaintiff contracted to sell to R. E. Elbon. By its terms, the decree applies these liens and claims only to the machinery located within said buildings; but we take it, from the character of the decree, that it was the intention to apply these liens and claims also to said buildings, and that the effect of the decree is to do so, although negligently drawn to accomplish this purpose, for in that part of the decree directing sale of the property the special commissioner appointed is directed to sell said buildings and other machinery gotten from said Wees, each separately. If such be not the intention of the decree, when the cause goes...
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