116 Ark. 44 | Ark. | 1914
Appellants instituted this action in the circuit court of Hot Spring Oounty to enforce a lien for the price of labor performed by one Alexander, a mechanic, for appellee in the construction of a house on a lot owned by the latter. Alexander assigned his claim to appellants, after having filed the claim in the 'Office of the circuit clerk of the county, verified by affidavit, as provided by statute. ín the affidavit of verification, the property was described as “the dwelling house of John W. Wright, which is situated on part of the northeast quarter of the southwest quarter of the southwest quarter, of section 13, township 4 south, range 17 west, containing one acre of land.” The lot is accurately described by metes and bounds in the amended complaint. The court sustained a demurrer to the complaint on the ground that the description in the affidavit of verification, which is exhibited with the complaint, is insufficient to. accurately identify the property sought to be charged with the lien. Appellants declined to plead further, and judgment was rendered dismissing the complaint.
The statute (Kirby’s Digest, § 6128), provides that “if the action, counterclaim or set-off is founded on a note, bond, bill or other writing as evidence of indebtedness, the original, or a copy thereof, must be filed as part of the pleading,” but the affidavit does not constitute the “evidence of indebtedness” on which the action is founded.
Even if the .affidavit could be considered in testing the sufficiency of the complaint, we are of the opinion that the description therein is sufficient. That is to say, it is sufficient when challenged by demurrer. The words furnisfi. the key to a description of the property sought to be charged, and are sufficient to let in extrinsic proof in aid thereof. Eddy v. Loyd, 90 Ark. 340.
In the same section, the author gives numerous illustrations of rather loose descriptions which have been upheld by various courts.
The same rule is in substance stated with approval by other text writers on the subject. Boisot on Mechanic’s Liens, § 431; Roekel on Mechanic’s Liens, § 103.
The circuit court erred in sustaining the demurrer, and the judgment is reversed and the cause remanded with directions to overrule the demurrer.