Willes v. Palmer

Decision Date21 June 1956
Docket NumberNo. 8350,8350
Citation298 P.2d 972,78 Idaho 104
PartiesW. LeRoy WILLES, Plaintiff-Respondent and Cross-Appellant, v. Hoyt PALMER and Genevleve Palmer, husband and wife, Defendants-Appellants and Cross-Respondents.
CourtIdaho Supreme Court

Gee & Hargraves, Pocatello, for plaintiff.

Caldwell & Whittier, Pocatello, for defendants.

TAYLOR, Chief Justice.

In November and December, 1953, plaintiff (respondent) furnished labor and materials in improvements made in defendants' (appellants') residence, in Buena Vista Townsite, Bannock County. The work was done pursuant to an oral agreement which was modified and additional items included as the work progressed. The defendants planned to sell the house and move to Utah. Their purpose in constructing the improvements was to make the house salable. The principal item involved was the construction of an apartment in the unfinished basement. The cost of the improvements is the principal point of disagreement between the parties. Defendants contend plaintiff originally agreed to do the work for $1,000--later increased to $1,800, which they have paid in full. Plaintiff said the $1,000 was an estimate given by him before he had inspected the house; that the $1,800 figure was given by him as an estimate in response to the defendants' inquiry as to the cost on December 4, 1953, during the course of construction, before the job was completed, and was an estimate only of the costs incurred to that date. The evidence is conflicting as to whether there was any agreement between the parties fixing the total cost. The preponderance of the evidence supports the findings of the trial court to the effect that the agreement was to pay the reasonable value of the labor and materials furnished and used in completing the work directed to be done by the defendants, and that the balance owing thereon is $924.48. During most of the period in which the work was done the defendant Hoyt Palmer was employed in Utah and not present except on week-ends. The defendant Genevieve Palmer was present during most of the time the work was being done and directed that considerable of the additions be included.

February 23, 1954, plaintiff filed a claim of lien to secure the unpaid balance. In this claim he avers that 'Hoyt Palmer is the owner or reputed owner' of the property. The defendants acquired the property by deed dated August 8, 1947, in which the grantees named were 'T. H. Palmer and Genevieve Palmer, his wife'.

This action to foreclose the lien was filed May 1, 1954, and Hoyt Palmer alone was named defendant. When the cause came on for trial, March 15, 1955, plaintiff was permitted to amend by adding the name of the wife, Genevieve Palmer, as a party defendant. In his motion plaintiff specifically disclaimed any right to a personal judgment against the wife. The amendment was made on that basis, over objection of the defense. A continuance was offered to permit Mrs. Palmer to appear and plead. But the defense elected to proceed and Mrs. Palmer, being personally present, joined in the answer filed by her husband, and set up a separate affirmative defense alleging that no claim of lien on her interest in the property was ever filed or any notice thereof given to her, and denying any liability for the services rendered.

Although not directly assigned, appellants urge that the claim of lien is insufficient because it does not include the name of Genevieve Palmer as one of the owners.

Two of the justices, including the author, are of the opinion that the claim of lien is sufficient, under section 45-507, I.C., applying the rule of liberal construction of the lien law. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95; §§ 73-102 and 45-516, I.C.; Gem State Lbr. Co. v. Union G. & E. Co., 47 Idaho 747, 278 P. 775. The majority of the court, however, entertain some doubt as to the validity of the claim of lien. The question is unimportant in this case, because of the conclusion we reach as to the foreclosure. We, therefore, do not decide, but for the purpose only of reaching the main question, we assume the validity of the lien claim.

Defendants contend that since Mrs. Palmer was not made a party defendant until after the statutory duration period of the lien had expired, § 45-510, I.C., the lien lapsed as to her interest in the property, and cannot be foreclosed, by making her a party subsequent to that period.

We have held that the lien is lost as against the interest of a mortgagee not made a party to an action to foreclose the lien within the six month period. Western Loan & Building Company v. Gem State Lumber Company, 32 Idaho 497, 185 P. 554. It was held in that case, and in the cases cited therein, that the period is more than a mere statute of limitations which is waived if not pleaded; that it is a limitation, not alone upon the remedy, but upon the right or liability itself; and that the lien is lost as against the interest of any person not made a party to an action to enforce it within the six month period.

In most jurisdictions having mechanic's lien statutes fixing the time within which the lien may be enforced, the time fixed is regarded as a limitation upon the right as well as upon the remedy, and that the lien is lost if the action is not brought within the specified time. Crandall v. Irwin, 139 Ohio St. 253, 39 N.E.2d 608, 139 A.L.R. 895, Id., 139 Ohio St. 463, 40 N.E.2d 933, annotation 139 A.L.R. 903. At page 913 the annotator says:

'Where the time prescribed by the lien statute for bringing enforcement suits fixes the duration of the right, the lien becomes void for all purposes as to any person not made a party to an enforcement suit within that time.'

See also Annotation 75 A.L.R. 695, at page 713.

The action not having been brought against Mrs. Palmer within the six month period, the lien as to her interest in the property was wholly lost. Her interest 'is a present vested estate, equal in degree, quantity, nature and extent with that of the husband'. Anderson v. Idaho Mutual Benefit Ass'n, 77 Idaho 373, 292 P.2d 760, at page 762.

The lien and the right of foreclosure having been lost as to the wife's interest, the question arises as to whether the lien may be enforced against the husband's interest. In Smedberg v. Bevilockway, 7 Cal.App.2d 578, 46 P.2d 820 and McClain v. Tufts, 83 Cal.App.2d 140, 187 P.2d 818, it is held in effect that community property can be segregated only in the instances and in the manner provided by law. McClain v. Tufts involved an attempt to seize the wife's interest in community property to satisfy her separate liability for tort. In First National Bank v. Samuels, 53 Idaho 780, 27 P.2d 959, this court held that the community property could not be subjected to liability for a tort of the wife without making the husband a party. In Smedberg v. Bevilockway, supra, the creditors and trustee of the bankrupt wife sought to subject the wife's interest in community property to the payment of her debts. The court in that case reasoned that since neither spouse could force a division of the community property, except as a collateral issue in a divorce proceeding, the trustee of either had no better right to do so.

No separate obligation is involved here. The debt owing to plaintiff is a community obligation incurred by the husband and wife in the improvement of community property; and the community property is subject to the judgment lien, and to levy and sale in satisfaction of the debt. The sole question involved is whether the mechanic's lien can be enforced by foreclosure against the husband's interest alone.

Expressly limiting our conclusion to the facts here presented, we hold that the half interest of the husband could not be severed from that of the wife by foreclosure and sale to satisfy the mechanic's lien, and that the lien as to the wife's interest, having lapsed by failure to make her a party within the time limited, the right to foreclose as to the husband's interest must also be denied. Cf. Grace v. Carpenter, 42 Cal.App.2d 301, 108 P.2d 701. In tort cases see Great Am. Indemnity Co. v. Garrison, D.C., 75 F.Supp. 811; McDonald v. Senn, 53 N.M. 198, 204 P.2d 990, 10 A.L.R.2d 966, Annotation 10 A.L.R.2d 988.

The appellants also assign as error the action of ...

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