162 Ill. 462 | Ill. | 1896
delivered the opinion of the court:
The petition seeks to enforce a lien for the whole amount due, against lot 1, block 7, as a unit. Two principal defenses were- interposed upon the hearing of the cause: First, that the statement of the claim filed in the office of the circuit clerk was not in compliance with the requirements of the statute; and second, petitioners were not entitled to a lien against lot 1, block 7, as a whole, but at most they could only proceed against each of the six lots separately. These defenses were overruled by the circuit court, and a decree entered granting the prayer of the petition, finding the amount due $1693.67, with interest at five per cent per annum from July 8, 1892, and ordering that unless the defendants, or some of them, pay the same, said lot 1, in block 7, with all buildings and improvements thereon, or so much thereof as may be sufficient to realize the amount due the complainants, with costs of suit, be sold at public auction, for cash, to the highest and best bidder, etc.; also ordering that in making the sale the master shall first offer the lots of the subdivision separately, and receive bids therefor, and if the sum of the bids so received shall be sufficient to satisfy the lien, with interest, costs, etc., that then said bids shall be received by the master and a sale made thereon, but if sufficient shall not be offered upon, the bids for the lots separately to satisfy the amount of said lien, interest and costs, then the master shall offer the whole of the premises together, and whichever way shall realize the most to apply upon the lien the master shall consider as conclusive, and shall sell the land upon such bids and issue certificates of purchase in the manner required by law. From that decree the defendants appealed to the Appellate Court for the First District. That court held that the statement filed in the office of the circuit clerk was insufficient to support petitioners’ claim, for the reason that it failed to show the year in which the material was furnished, holding that the date (September 1, 1892,) in the heading referred merely to the date when the statement was made out, and could not be understood as indicating the year in which the items were furnished, and hence it considered no other grounds of reversal urged.
The objection that the year in which the material was delivered is not shown is admitted to bex hypercritical, but is thought to be fatal under the rule announced by this court that the statute providing for such liens must be strictly construed. This seems to us to carry the rule of strict construction to the extreme, and the decisions of this court cited in support of the conclusion do not sustain it. It'is true the date “September 1,1892,” has reference to the time when the statement was made out; but it does not follow that it may not also, in-the absence of anything to show the contrary, sufficiently indicate the year in which the material was bought. We think it must be understood, when the whole statement is considered, that the lumber mentioned in the several items was sold in the months of April, May, June and July of the year 1892, and that any one examining it would so understand.
The objection that the statement fails to give a sufficient description of the property to be charged with the lien, is, in our opinion, of more substantial merit. Section 4 of the statute, supra, evidently means that the statement to be filed with the clerk shall contain an account of the materials furnished, after allowing credits, showing the times when the same were furnished and containing a correct description of the property to be charged with the lien, and shall be a complete statement of those facts within itself, which statement shall be verified by an affidavit,—and such is the effect of the decision in McDonald v. Rosengarten, 134 Ill. 126. If, however, all facts necessary to be stated are set forth in the paper filed, taken as a whole, and verified by affidavit, we see no good reason for holding that it would not be sufficient. The objection, in that case, would be to the form rather than to the substance of the statement. Taking this statement, with the affidavit attached thereto, we are inclined to the view that the premises upon which the lien is claimed are sufficiently described. It is true the language is not apt, but we think enough is shown to inform parties interested upon what property a lien was claimed.
The question then remains, were complainants, under the facts of this case, entitled to a lien upon lot 1, as a whole?—or, as counsel term it, a blanket lien? It was said in Culver v. Elwell, 73 Ill. 536 (at p. 540): “Another serious error assigned is, that the decree establishes liens upon all these buildings, five in number, on separate lots and different blocks, as upon one building. If these five buildings were one block, covered by the same roof, such decree would be proper. (James v. Hambleton, 42 Ill. 308.) We understand these premises to be distinct and separated from each other, and under separate roofs. This being so, the rule in Steigleman v. McBride, 17 Ill. 300, applies, where it is said, if the work done or material furnished are upon distinct premises the lien must be against each of the several premises, according to the value of the work and material on each.” '
But it is said, at the time the lien attached the property was one entire block, and therefore it attached to the property in that condition,—in other words, it seems to be contended that when the order was given and the delivery of the lumber begun the ground was to be treated as lot 1, in block 7, because it was so of record át that time. As a matter of fact, when this lien attached lot 1 no longer existed as a single piece of property. It had been subdivided, and the owner, with whom petitioners contracted for material, held his title to the six lots separately. If the position is that petitioners were not chargeable with notice of such subdivision because the same had not then been recorded, the answer is, then they had no knowledge of title in Fried at all, because he then had no title of record whatever. When they dealt with him he held' title to the six lots separately, and we are unable to see upon what just grounds they can claim to enforce a lien upon them in a different manner from that in which he owned them. The order for the lumber does not pretend to describe the property as one lot, but indicates that it is to be used in building six separate houses.
Under the circumstances stated, the fact that the plat of the subdivision and Fried’s deed were not then on record gave petitioners no right to a lien upon the property as a whole. But even if the recording of these instruments were of controlling importance, when petitioners filed their claim for lien, and in fact before any considerable amount of the material had been delivered, they were filed for record. Their right to enforce a lien became complete only upon their filing that statement, and they were then chargeable with notice of every fact which is or could be claimed to be necessary in order to require them to proceed against each lot separately. Under the facts of this case as to the incumbrance by trust deeds, the propriety and justice of adhering to the rule announced in Culver v. Elwell, supra, are manifest. It requires but a moment’s reflection to see that the decree rendered below, as to the manner in which the property is to be sold, may result in great hardship and injustice to these incumbrancers.
It is said that separate accounts were not kept of the lumber furnished to each house. It does appear, as we understand, that the houses were alike, and if this be true the lumber furnished to each can be readily apportioned. But if this is not true, the failure to keep separate accounts was the fault of petitioners themselves, and cannot be made the subject of complaint by them.
The decree of the circuit court and judgment of the Appellate Court will be reversed and the cause remanded to the circuit court, with directions to proceed according to the views herein expressed.
Reversed and remanded.
