1 Colo. App. 222 | Colo. Ct. App. | 1891
The right to maintain the present action is necessarily dependent upon the legal effect resulting from the filing of the notice contained in the statement. There is no other question presented. The sale and delivery of the materials to Ferguson, who was the owner of the property prior to the sale to Mrs. Anderson, is admitted. The notice was filed in the recorder’s office of Arapahoe county within the time limited by the statute, and for the purposes of this decision it may be conceded that the property described in the notice is situate within the limits of the county. The purchase by Mrs. Anderson having been made prior to the time the notice was filed, although within the sixty days iimited for the filing of liens, she must be held to have taken title freed from the burden of this claim, under the lien statute, unless without more the notice be held to charge her with the liability. According to the views held by this court concerning the proper construction of that statute, the notice was wholly in
In reaching this conclusion the .court is entirely unembarr rassed by Martin v. Simmons, et al., 11 Colo. 411.
If the decision in that case had been far reaching enough
Appellees’ right to recover is dependent upon' a notice which does not identify the property by naming the city in which it is to be found, or the county wherein it is situate. It is wholly unaided by any statement of the ownership of the property or of any extrinsic circumstances which would aid in its identification. It is a case barren of equities and entitled only to those legal rights which may be acquired by an exact fulfilment of the statutory requirements. When the right to enforce a debt against property held and owned by one who did not contract the debt, nor agree to pay it, is to be deduced from the constructive notice afforded by record, it violates no rule of statutory construction and impinges upon no equities possessed by the claimant to hold him to the letter of the act.
Generally in the law it has been accounted necessary to show a contract, or to commence the enforcement of a legal right in order to justify the embarrassment of the title to real property. Statutes permitting such things to be done by the simple record of a notice which may or may not be the inception of a valid' claim do not justly admit of any other than a strict construction, at least as against what are well termed material men. It is not intended to extend the doc
The rule here declared finds ample support in well considered cases. De Witt, et al., v. Smith, et al., 63 Mo. 263; Matlack, et al., v. Dare, 32 Mo. 262; Bassbor v. Kilbourn, 3 McArthur 273; Phillips on Mechanics’ Liens, chap. 32, § 378 et seq.
The notice of the lien being wholly insufficient under the record to charge the property with the claim as against the purchaser, Mrs. Anderson, this cause must be reversed and remanded for further proceedings in conformity with this opinion.
Reversed.