179 Iowa 726 | Iowa | 1917
This action is brought to foreclose a mechanics’ lien. The defendant Johnson is the owner of the property involved. He is a married man, and the property involved is his homestead. The defendant Bowker is a contractor, and, on or about the 17th day of August, 1914, entered into a contract Avitli Johnson to furnish paints, oils and. materials for a certain frame dAvelling house situated on this homestead property. Bowker secured from the plaintiff the material with Avhich to fulfill his contract with Johnson. The last items were furnished' on the 20th day of August, 1914. On the 11th day of September, 1914, the plaintiff caused to be served upon the defendant Johnson notice of his claim, and in pursuance thereof filed a mechanics’ lien, as required by statute. This action is brought by the plaintiff to foreclose this lien, and for judgment against BoAvker for the reasonable value of the material so furnished. A hearing vvas had in the district court, and judgment was rendered against Bowker and the mechanics’ lien established and foreclosed, and the property
1. That the material sued for was not sold to Bowker for use on the Johnson property; that Bowker had a general running account with the plaintiff, bought material on his own credit, and used it on any building he saw fit, without any understanding that it should be used on any particular building; that the material sued for was not used by Bowker on the Johnson building.
2. That the property sought to be charged with the lien is the homestead of the defendant Johnson, and is by law, therefore, exempt from, any claim for this lien, in that Johnson’s-wife did not join in the contract for the improvement of the property.
3. The defendant pleaded that the mechanics’ lien statutes are unconstitutional, in that they interfere with the right of contract; that they give to a subcontractor, with whom the owner of the property had no dealing, a right to enforce a claim against the property of the owner at any time within 30 days after the completion of the work, and also force the owner to hold back a portion of the contract price to meet such contingent liability.
J. That they abridge the freedom of contract, in that they prevent the owner from paying his principal contractor in accordance with the terms of his contract, and force him to withhold a portion of the contract price to protect a subcontractor, or submit to double liability. ■
The first defense presents a fact question. The district court found against appellant’s contention. A review of the record, as presented in this court, satisfies us that Johnson entered into a contract with Bowker, by the terms of which Bowker agreed to furnish the material and paint and decorate a building on defendant’s homestead, for a fixed consideration to be paid to Bowker upon the completion of the work; that, in pursuance of the contract,
Section 3089 of the Code of 1S97 provides:.
“Every person who shall * * * furnish any materials * * * for any building * * * by virtue of any contract with the owner, his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this chapter, shall have for his * * * material * * * a lien upon such building * * * and upon the lqnd belonging to such owner on which the same is situated.”
Code Section 3092 provides:
“Every person, whether contractor or subcontractor, who wishes to avail himself of the provisions of this chapter, shall file with the clerk of the district court of the county in which the building i:‘ * * * to be charged with the lien is situated 'a verified statement or account of the demand due him * * * * setting forth the time when such material was furnished or labor performed, and when completed, and containing a correct description of the property to be charged with the lien, which statement or account must be filed * * * * by a subcontractor within 30 days,
The plaintiff furnished the material and complied with the requirements of this statute, and was, therefore, not only entitled to a mechanics’ lien, but .entitled to enforce it against the property, unless his right is defeated by the matters urged by the defendant, to the consideration of which we now turn our attention.
Section 2975 of the Code of 1897 provides:
“The homestead is subject to mechanics’ liens for work, labor or material done or furnished fexclusively for the improvement of the same.”
The right of occupancy and the right of exemption from sale and incumbrance are purely statutory. Homestead rights are given and regulated by statute. Homestead exemption is given by statute.. The same power that gave the
“No owner of any building or structure upon which a subcontractor’s mechanics’ lien may be filed, * * * shall be liable to an action by the original contractor for compensation for * * * materials * * * furnished for any building * * * until the expiration of thirty days from the completion of said building * * * unless (lie original contractor shall furnish to the owner of said building * * * receipts and waivers of claims for mechanics’ liens, signed by all persons who * * * ■ furnished any material * * * for 'said building * * * provided there be such persons, or unless the original contractor shall furnish to the owner a good and sufficient bond to be approved, by said owner, conditioned that said owner shall be held harmless from any loss which he may sustain by reason of the filing of subcontractor’s mechanics’ liens. Should the owner pay to the original contractor any part of the contract price of such building * * * before the lapse of the thirty days, * * * he will still be liable to said subcontractor for the full value of any -material * * * furnished or labor performed upon said building * * * provided said subcontractor file his mechanics’ lien within the time provided by law. * *• *
This section gives to the owner all protection against double liability, and provides for the principal contractor a method by which he may secure the contract price upon the completion of the work. The provisions of this statute are just and equitable, and make, for all the parties, a contract which is just and equitable to all, and impinge upon no legal or constitutional right of any.
It is next contended that the plaintiffs took collateral security; and, therefore, under Section 8088 of the Code of 1897, they are not entitled to mechanics’ liens. The evidence does not sustain this contention, and we give it no further consideration.
Upon the whole record, we find no ground for reversing the action of the district court, and the cause is affirmed.— Affirmed.