Arnold v. Campbell

3 Indian Terr. 550 | Ct. App. Ind. Terr. | 1901

Gill J.

The question involved in this case, on the bill of exceptions, as by appellant’s brief, is on the fourth specification of error, namely, that the court had no jurisdiction to enforce a material man’s lien on land in the Indian Territory. By the act of congress of May 2, 1890, congress put in force in the Indian Territory chapter 96 of Mansfield’s Digest of the Laws of Arkansas (chapter 44> Ind. T. Ann. St. 1899), relating to liens. Said chapter, in section 4402 (section 2869), provides; “Every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work or labor or furnish any materials, machinery or fixtures for any building, erection or other improvement upon land, including contractors, subcontractors, material furnishers, mechanics and laborers, under or by virtue of any contract, express, or implied, with the owner or proprietor thereof, or his agent, trustee, contractor, or sub-contractor, upon complying with the provisions of this act, shall have for his work or labor done, or materials, machinery or fixtures furnished, a lien upon such building, erection or improvement and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished.” The contention of the appellant is thao this section is locally inapplicable because it gives a lien upon tbe land belonging to the owner of the building or improvements for which the material or labor is furnished, and because this land is in the Choctaw Nation, and is held and owned by the Choctaw Indians as a tribe. The complaint in this case alleges that the materials were used by the defendant in tbe construction and erection of a certain residence erected and situated within the limits of the town of South McAlester, Ind. T., and describing the lot on which said residence was builded, so far as its metes and bounds would admit of a description, and alleging that it had never been platted. The complaint in this action states a cause of action against the defendant, and, although there are specific denials of all the allegations of the complaint by the answer of the defendant, when the case was submitted to the jury the plaintiff submitted his evidence, and the defendant submitted no evidence. The court found from the evidence that the plaintiff was entitled to a judgment, and directed the jury to return a verdict in behalf of the plaintiff, which the jury accordingly did. After hearing and overruling a motion for a new trial on the part of the defendant, the court entered up the judgment heretofore specifically set forth in the statement, and directed a sale of the improvements, and of the interest of the defendant in the ground upon which the improvements were builded, and it is upon this latter ground that the appellant stands for a reversal of the court’s judgment. We are of the opinion that section 4402, Mansf. Dig. (section 2869, Ind. T. Ann. St. 1899), is in full force and effect in all parts of the Indian Territory, and is not locally inapplicable so far as the enforcement of a mechanic’s lien is concerned. And, while it is certainly true that the lien cannot attach to real estate, it may attach to the interest of the individual in the real estate on which the improvements may be situated. In this case the lot and parcel of ground in controversy is situated within the town of South McAlester, Ind. T., according to the pleadings. The court found that the plaintiff had a material man’s lien upon the following described property: “One five-room house, with hall, one story high, and all defendant’s right, title, and interest in and to one lot situated on the west side of the Missouri, Kansas & Texas Railway Company’s track, in the town of South McAlester, Indian Territory, said lot being three hundred feet square. Said house is situated on the southeast corner of said lot, and fronting south and east. Said lot is bounded on the east by a lot owned by Yancey Lewis, on the south and across the street by a lot owned by Bill Phelps, and on the north and west by vacant lots,” — and further ordered and adjudged that the clerk of court should issue an execution, directed to the United States marshal commanding him to sell the above-described house to satisfy said judgment and lien. If it was not shown in the evidence that South McAlester was an incorporated town, the court was bound to rake judicial notice of its incorporation, it being within the Central district, and the court had power and jurisdiction to enter up the judgment as given. We find no error in the record, and therefore the judgment of the court below is affirmed.

Townsend, C. J., and Raymond, J., concur.