90 W. Va. 760 | W. Va. | 1922
These three cases involve the validity of certain mechanics ’ liens on three separate lots and the buildings thereon. They were heard together in the court below and also here. As the same point of law is raised in each case, a single opinion -will suffice for all.
McOlvin Case.
In this case, Martin Petrel, in February, 1919, bought -from C. T. Stealey, Lot No. 98 in the Hartland Addition to ■Clarksburg, the deed to be made upon payment of the purchase money. About March 1st, Petrel took possession .and began constructing a dwelling house thereon. He bought -.most of his materials from Glen Elk Lumber Company and
Plaintiff’s notice of lien was recorded October 15th, and within 90 days from the date of furnishing the last materials. Not knowing the exact relations between Stealey, Petrel and McOlvin, it filed its notice of lien against all of them. Iff McOlvin were the purchaser of the lot from Stealey, in the:
Petrel being the equitable owner of the lot, plaintiff was not required to serve upon him any notice of its claim of lien; nor did it need to do so as to McOlvin. It owed him no duty. He bought the property subject to the valid lien claims then filed or which might thereafter be filed for record against Petrel’s equitable interest. It necessarily follows that plaintiff’s claim for materials furnished Petrel and which went into the construction of the dwelling placed on the lot, to which he had an equitable title is a valid lien, and the decree so holding will be affirmed. We have not discussed the question whether plaintiff actually furnished the materials, as we think there can be no doubt about that.
Some time in March, 1919, Fred Petrel contracted with Etta Pearl Spears for the purchase of Lot No. 185 in the Hartland Addition. The terms of purchase do not appear. About that time he took possession and started building a house thereon. A deed was made to him for the lot, dated June 17, 1919, recorded September 18th.' ' On August 23rd he conveyed the lot to J. R. Jackson, by deed, recorded September 18th. Jackson, on September 9th, conveyed to appellants, Jacob Realty Company 92-117ths, and Southern Pine Lumber Company the remaining 25-117ths of the lot, by deed, which was recorded September 22nd.
Before the deed was made to Petrel, the plaintiff sold and delivered certain material for the construction of the dwelling on this lot, and its deliveries, beginning May 5th, continued up to August 1st. On October 15th, it recorded its notice of lien against M. Petrel, F. Petrel, J. R. Jackson, Jacobs Realty Company, and Southern Pine Lumber Company. The present owners, the appellants, deny that Fred Petrel was the owner, but say he wás the principal contractor in the construction of the dwelling house, though there is no evidence of that fact. He bought the lot, started the building and then received a deed for it before the work was- finished. The only difference between this case and the McOlvin ease is that the original purchaser in the Mc-Olvin case did not ultimately take legal' title to the lot; in this case he did; hence'this ease is governed by the same principles as .the McOlvin case. Plaintiff perfected its lien within thé 90 days' required and the decree enforcing its lien as well as the other liens is affirmed.
Jacob Realty Company Case No. 2.
■It appears that 'Fred Petrel contracted with Florence Rider Dupay for the purchase of Lot No. 179,’ Hartland Addition, though the deed for .the lot was made to his father, P. M. Petrel, dated June 17,' 1919, recorded September 18th, August 20th, P. M. Petrel conveyed it to J. R. Jackson, a son-in-law, and he recorded his .deed September 18th. Jackson on September 9th by deed conveyed 92-117ths of the lot
Plaintiff, on October 15th, filed its notice of lien against Florence Rider Dúpay, P.‘ M. Petrel, Fred Petrel, Martin .'Petrel, J. R. Jackson and the present owners, the appellants. It began furnishing materials May 15th and ceased August ‘2nd. Its notice is in the usual form and affects the interests, whatever they might be, of all who were named in it. ‘The fact that some named in the notice did not have any interest in the property does not affect its validity, as to ■those who did. 27 Cyc. p. 165. The notice of lien was ■filed within the period required by the statute. That Fred Petrel was employed by his father to build the house on a ■percentage or cost plus basis did not make him an inde■pendent contractor. He was his father’s agent, and his ■father was bound by what he did, so notice to the father of ■plaintiff’s claim of lien was not required. Filing it for record within the required statutory period was sufficient.
We therefore, affirm the decrees in each case.
Affirmed.