Whitener v. Purifoy

• Decision Date: 30 April 1928
• Docket Number: 409
• Citation: 5 S.W.2d 724,177 Ark. 39
• Parties: WHITENER v. PURIFOY
• Court: Arkansas Supreme Court

5 S.W.2d 724

177 Ark. 39

WHITENER v. PURIFOY

No. 409

Supreme Court of Arkansas

April 30, 1928

Appeal from Dallas Chancery Court; J. Y. Stevens, Chancellor affirmed.

Decree affirmed.

J T. Richardson, for appellant.

John L.McClellan, for appellee.

OPINION

SMITH J.

Appellee obtained a decree in the court below enforcing a mechanic's lien against a building owned by appellant and the acre of land upon which the building stands.For the reversal of this decree it is insisted that the lien claimant did not, within ninety days after the building material had been furnished, file with the circuit clerk, as required by § 6922, C. & M. Digest, "a just and true account of the demand due or owing to him, * * * and containing a correct description of the property to be charged with said lien, verified by affidavit."

The affidavit was dated and filed December 28, 1925, and the account, which was verified, showed that one brick-trowel had been furnished under date of 10-1-15, and that six sheets iron roofing had been furnished under date of 10-20-25.Plaintiff had previously furnished a bill for material under a date more than ninety days prior to the date of the affidavit, but the two items above mentioned were furnished within the ninety days, and, as these items were a part of the material furnished, the affidavit filed sufficed to bring the entire demand within the provisions of the statute, as it has been many times held that the affidavit is filed within the time required by law if it is filed within ninety days of the date of the last item on the account.

In the case of Ferguson Lbr. Co. v. Scriber,162 Ark. 349, 258 S.W. 353, all the items of the account had been furnished more than ninety days before the filing of the statutory affidavit, except some cement, which was furnished to put around a leaking flue.We held that, as the cement had been furnished within the ninety days, the affidavit was filed in apt time.In so holding we said: "The statute contemplates that the items will bear different dates; in other words, that there will be items of debit and credit, and the requirement of the statute is that, within ninety days of the date of the last item debited, the account shall be filed"(Citing cases).

The affidavit described the house into which the materials went as being in the southwest quarter of the northwest quarter section 3, township 8 south, range 15 west, and the southeast quarter of the northeast quarter section 4, township 8 south, range 15 west, in Dallas County, Arkansas, and the identical description was employed in the original complaint, but, before the final submission of the cause, the complaint was amended to describe, by metes and bounds, the acre of land upon which the house was located and against which the lien was claimed.

The two 40-acre tracts of lands described in the affidavit and the original complaint, although in different sections, are adjacent, and together comprise defendant's farm.The amendment to the complaint shows the location of the house on the southwest quarter of the northwest quarter section 3, township 8 south, range 15 west, but, as there is only one dwelling-house on the land, there can be no uncertainty as to the house upon which the lien is claimed.

Appellant cites and relies upon the case of Arkmo Lbr. Co. v Cantrell,159 Ark. 445, 252 S.W. 901, as sustaining his contention that the affidavit is not sufficiently definite in its description of the property to be charged with the lien to comply with the statute defining the practice for the enforcement of the lien.In that case materials had been furnished which had been used in the repair of several of a large number of houses on a plantation consisting of 1,380 acres, and the affidavit mentioned the 1,380-acre tract as a description of the property to be charged with said lien, and it was the opinion of the majority that the description employed was too indefinite.However, the writer of that opinion was of the contrary opinion, and quoted the statement of the law appearing in 27 Cyc. 159 as expressing his view and as sustaining the lien claimant's contention.The statement of the law quoted in that opinion from 27 Cyc. 159 reappears as § 266 of the chapter on Mechanics' Liens in 40...