91 P. 714 | Okla. | 1907
Opinion of the court by Prior to the year 1903, one O. P. M. Butler leased from the school land leasing board section 36, township 2 north, range 12 west, reserved for school purposes, and adjacent to the city of Lawton, in Comanche county, Oklahoma. The lessee was permitted to plat a portion of the section for townsite purposes as an addition to the city of Lawton, and to sublease the lots embraced in said addition. The lots in controversy in this case were leased to E. T. Pearson, a married woman and the wife of W. J. Pearson. L. H. Robinson entered into a contract with W. J. Pearson to furnish the material and construct a dwelling house on the lots leased to Mrs. Pearson. G. H. Block furnished the material which was used in the construction of the house and received no compensation therefor. He filed a lien upon the property alleging that W. J. Pearson was the owner of the property, and that he furnished the material under a contract with the contractor, Robinson. On April 25, 1903, the plaintiff in error, G. H. Block, commenced his action in the district court of Comanche county against the defendants in error, W. J. Pearson, E. T. Pearson, L. H. Robinson and O. P. M. Butler, in which he sought to recover personal judgment against W. J. Pearson for the amount of his claim for material used in the construction of said house, and the enforcement of a lien against the property. Robinson and Butler made no defense. The Pearsons answered setting up that the title to the land was yet in the United States; that Mrs. Pearson occupied the same by virtue of a lease from Butler, who was the lessee of the school land leasing board, and that she did not purchase the material or enter into the contract for the construction of *424 said house; that W. J. Pearson had no interest in the property; that he had contracted with Robinson to build the house upon his wife's lease, but that he had not made any contract with Block for the material used in the construction of said house. A reply was filed setting up the authority of Butler from the school land leasing board to subdivide the land and sublease the lots for townsite purposes. The cause was ordered to a referee for trial, with directions to hear the evidence and report his findings of fact and conclusions of law. This was done; the referee recommending a judgment for the defendants for their costs. The court approved the report of the referee and rendered judgment that the plaintiff take nothing by his action, and that he pay the costs of suit. From this judgment the plaintiff below has appealed, and the case is before us for review.
There are some questions argued in the brief of plaintiff in error that we cannot consider on the record presented. The case contains the evidence taken before the referee, but there was no bill of exceptions allowed and signed by the referee preserving the evidence, nor was there any order of the court directing the referee to report the evidence. There is no order of court making the evidence taken before the referee a part of the record, hence the evidence is no part of the record, and was not properly before the district court for consideration, nor is it before this court for its consideration. This question was before this court in the case of Howe v. City ofHobart,
The only question we are authorized to inquire into is whether or not there was error in the conclusions of law applied to the facts found. The referee found that Mrs. E. T. Pearson was the lessee of the lots upon which the lien was claimed; that she held as the sublessee of Butler, who was the lessee of the school land leasing board; that her husband, W. J. Pearson, had no interest in the land; that he procured the building to be erected upon her lots for her use and largely at her expense, although he procured some of the means upon his own credit; that W. J. Pearson contracted with Robinson to construct the house, and that W. J. Pearson was about the premises a great deal of the time and acting as agent for his wife. In relation to the claim of plaintiff, he found as follows: "December 28, 1902, Robinson and W. J. Pearson entered into a contract whereby for the sum of $1,000 Robinson was to build on said lot a dwelling; the material and workmanship to be first class. Plaintiff furnished materials which went into the construction of the house; the materials furnished were for prices agreed upon between plaintiff and Robinson; Pearson had full knowledge that Robinson was getting the materials from plaintiff, and knew when he paid Robinson that plaintiff had furnished materials for the house. Pearson paid the full contract price to Robinson and to others for work and material, the amount of cash paid to Robinson being $568.40, Feb. 28, 1903. Pearson directed plaintiff to charge the materials to him and promised to pay for them. That materials which plaintiff furnished and which went into the construction of the house amounted to $863.70, no part of which has been paid plaintiff. Pearson moved into the house in February, 1903. Pearson accepted the *426 house as completed according to contract. At the time of the execution of the lease by Butler, E. T. Pearson was a married woman, and W. J. Pearson was her husband." Other findings show that Mrs. Pearson was the lessee; that Block filed his lien statement in proper time, and that Butler, the lessor of Mrs. Pearson, was the lessee from the school land leasing board of section 36, township 2 north, range 12 west, which embraces the lots in controversy. Upon these facts the referee stated as conclusions of law that the plaintiff was not entitled to a lien, for the reason that he had given no notice to Mrs. Pearson of the filing of such lien, as required by the provisions of section 4819, Wilson's Stat. 1903, and that having proceeded against a subcontractor, and alleged a sale to a subcontractor, he was not entitled to a personal judgment against Pearson. Before the cause proceeded to judgment, the plaintiff applied for and obtained leave to amend his lien statement to conform to the facts as found by the referee, so as to show that the contract was made with W. J. Pearson, the husband of the owner of the property, and to amend the petition by appropriate allegations, changing the facts to conform to the amended lien. These amendments must be treated as made, and they changed the entire theory of the pleadings. The case was tried as one against W. J. Pearson, as owner, and in which Block had furnished material to Pearson's contractor. The facts having shown that Mrs. Pearson was the owner, that W. J. Pearson was her husband, and that Block had sold the material to him to go into the construction of her house, the law as stated by the referee became inapplicable to the issues. There seems to have been no objections made to the request to amend the lien statement and petition or to the allowance of such request. The trial court followed the recommendations of the referee and rendered judgment in favor of the defendants. It seems that either the amendments of the lien statement and petition were overlooked or the statute on the subject was misapplied. The section, 4817, Wilson's Stat. 1903, governing the amended lien statement and *427 petition, is as follows: "Any person who shall under contract with the owner of any tract or piece of land or with the * * husband * * of such owner, furnish material for the erection * * of any building * * thereon * * * shall have a lien upon the whole of said piece or tract of land, the building and appurtenances, in the manner herein provided, for the amount due him for such * * materials * *". The mode of procedure to acquire the lien and to enforce same is set forth in section 4818. No other notice than that of filing the lien is, in such cases, required. The rule is obviously different from that required where the person seeking the lien has sold the material to a contractor or subcontractor.
The facts found and appearing from the pleadings and exhibits, we think, bring this case within the terms of the foregoing statutes. We think the facts and exhibits show that the plaintiff, Block, sold the material under a contract with W. J. Pearson, the husband of E. T. Pearson, the owner of the leasehold upon the land upon which the house was built; that the material was furnished for the erection of a building upon said real estate. If this position is correct, then the statute gives Block a lien upon Mrs. Pearson's interest in the real estate by complying with the requirements of the statute necessary to effectuate such lien. It is contended that the fee of the land is in the United States and that the primary disposal of the soil cannot be interfered with. These contentions may be conceded, and yet they are not fatal to this case. Our statute was adopted from the state of Kansas, where it has been in force many years and has frequently been the subject of judicial interpretation. It is there held that the term "owner" embraces a leasehold, and that the lien of the statute will attach to whatever of interest, legal or equitable, the occupant may have, subject to the paramount rights of the holder of the fee, and we think this sound in principle. Leitz et al. v. U. P. Ry. Co.,
The next contention is that the court erred in not giving the plaintiff personal judgment against W. J. Pearson for the amount of his demand. The law as stated by the referee and as applied by the court was correct as to the original lien statement and pleadings, but was erroneous as applied to the amended lien statement and petition. We think the plaintiff should have been allowed judgment against Pearson for the balance due on his account, with interests and costs.
The judgment of the district court of Comanche county is reversed, with directions to the district court to set aside the conclusions *429 of law and to restate the same in accordance herewith, or grant a new trial, as seems most consistent with justice and right.
Gillette, J., who presided in the court below, not sitting; Irwin, J., absent; all the other Justices concurring.