31 P.2d 738 | Mont. | 1934
There were two separate debts, one of Hardie and Burns, the other of the Havre Oil and Gas Company, and the lien was filed or claimed against all of the above-named parties and the Bears Den Oil Company. The two contracts or debts could not be tacked together and one lien filed to cover the same. (40 C.J. 178, 181;Meyer Lumber Co. v. Trygstad,
The courts of Iowa, from which state our mechanic's lien law was taken, have repeatedly held that blanket or joint liens are valid where there is a single or joint contract, and are illegal and not enforceable where there are no such contracts. So, also, have the courts of North Dakota held, whose lien law was likewise taken from Iowa. (Edinger Co. v. Hildreth *453 M.U.E. Church,
The lien did not give the name of the owner or reputed owner of the leasehold, or his agent or trustee. This court held inMissoula Mercantile Co. v. O'Donnell,
The lien did not show the amount claimed, or declared a lien against the respective parties or defendants. "The lien claimant should have filed a separate lien statement * * *; the inclusion of all claims in one `hotch potch' vitiates the entire lien claimed." (Exchange Nat. Bank v. Okeya Oil Co., supra.)
The court erred in refusing defendant's motion to compel the plaintiff to elect against which defendant he would proceed, as there was a misjoinder of parties defendant. It appeared from the testimony introduced by the plaintiff that the liabilities of Hardie and Burns, and the Havre Oil and Gas Company, were not joint, but separate and successive, consequently they could not be joined as defendants in the same cause of action. (47 C.J. 76, 227; Bracht v. Johnson,
The court erred in overruling defendant's motion to dismiss at the close of plaintiff's case. Plaintiff had alleged a joint contract of the defendants Hardie and Burns and the Havre Oil and Gas Company. The testimony offered proved and the findings show not a joint contract of the defendants but successive and separate contracts. It did not prove the contract as alleged with either or any of the defendants. "The proof must correspond with the pleadings with respect to *454
the parties for or against whom the claim or defense sought to be established exists * * * there is substantial departure where joint liability is alleged and several is shown by the evidence." (49 C.J. 813.) "Two or more persons whose respective liabilities depend on causes of action which are essentially distinct and several, cannot be joined as defendants in one action * * * where several persons are successively liable, each for his own act alone, although in respect to the same matter." (47 C.J. 76;Bracht v. Johnson,
In determining whether or not the name of the owner is sufficiently designated all the facts in the statement are to be considered. (United States Blowpipe Co. v. Spencer,
The statute does not specifically require that the name of the owner or person interested be stated in the lien, but it does state that the county clerk abstract and index the lien; and by reason thereof this court has held that the lien must set forth the name of the owner, or at least the name of the person whose interest in the property is to be subjected to the lien. (Missoula Mercantile Co. v. O'Donnell,
There was no misjoinder of parties or causes of action. Where the subject of the action has become so complicated that the rights of the parties are involved in doubt and it is difficult to determine who is liable and who is not, or to divide the liability, equity permits a joinder of all so related to the controversy, so that liability may be fixed where it belongs. (47 C.J. 84; Busset v. California Builders Co., supra;Fransioli v. Thompson,
On October 6, 1930, Blose filed a "claim for labor lien," to which he attached his "statement of account for labor furnished in connection with the drilling of oil and gas well" made "to J.J. Hardie, Bears Den Oil Company, B.D. Burns and Havre Oil and Gas Company." The statement is of debits and credits over the entire period of service, and shows a balance due of $1,765.28. On March 22, 1931, Blose brought action against the original associates, the trustees, and the corporation, jointly, for the full amount claimed and for the foreclosure of his asserted lien.
By a joint answer the defendants admit practically all of the allegations of the complaint, but assert that the employment of the plaintiff was by Hardie and Burns up to the time of incorporation, and by the corporation thereafter. They deny the correctness of the statement of account for each period, and allege the invalidity of the "claim of lien." Certain alleged counterclaims are set up which are not material here. Issue being joined, the cause was tried to the court without a jury.
On the trial the defendants demanded that the plaintiff be compelled to elect as to whether he would proceed against the individuals or the corporation, which demand was refused; they objected to the introduction in evidence of the claim of lien filed, which objection was overruled.
At the close of the trial the court made findings of fact and conclusions of law, upon which it entered judgment in favor of the plaintiff, and against Hardie and Burns, trustees, in the sum of $761.08 under the contract, for $150 attorneys' fees and for costs, and against the Havre Oil Gas Company in the sum of $678.65. The court decreed that the plaintiff has a valid and existing lien against all the right, title and interest of all of the defendants in and to the leasehold for the total of the judgments, and decreed the foreclosure of the lien and sale of the property. *458
The defendants have appealed from the judgment; they specify error upon the receiving of the lien in evidence, the overruling of the motion to compel an election, in overruling their motion for judgment of dismissal at the close of plaintiff's case, and upon numerous findings of fact made.
The position taken by counsel is that the plaintiff worked under two separate contracts — the first with the trustees, on which he was entitled to maintain an action against them; the second with the corporation, on which he was likewise entitled to maintain an action against it — which could not be united in a single action, and that, as there was no continuous service under a single contract, the single claim of lien for the full amount was invalid and cannot become the basis of a foreclosure suit.
The defendants cite a number of decisions condemning the tacking of one contract debt to that of an independent contract debt as the basis of a single lien claim, the latest of which is an oil-well case (Exchange National Bank of Tulsa v. Okeya Oil Gas Co.,
Defendants cite one case which supports their contention (Gerard B. Allen Co. v. Frumet Milling Smelting Co., *459
While mechanics' lien laws did not exist at common law and are[1] unknown in England, our forefathers were so imbued with the spirit of justice and fair dealing that such laws came into being in this country almost simultaneously with our Constitution. The first "Act to encourage master builders by establishing a lien for their just claims" was passed in Maryland in 1791; the idea spread rapidly to all the original states and to territories and states as they were created. The lien exists to-day in every state in the Union. (Lloyd on Building
Buildings, 413.) Such a law has existed in Montana since the earliest territorial days. (Bannack Laws, p. 332.) For a history of our law, see Merrigan v. English,
The controlling statute in the instant case is Chapter 152 of the Session Laws of 1923, which provides in part: "Any person * * * who shall under contract, expressed or implied, with the owner of any leasehold for oil and gas purposes * * * perform labor * * * in * * * drilling, torpedoing, completing, operating, or repairing of any oil or gas well, * * * shall have a lien upon all of the right, title and interest of such owner in and to the whole of such leasehold. * * * The liens herein created shall be enforced in the same manner * * * as now provided * * * for * * * mechanic's liens, except that the time within which such liens must be filed shall be six months instead of ninety days. * * *"
Desiring to avail himself of the benefits of the foregoing statute, the plaintiff was required to file with the county clerk, within six months after the labor was performed, a "just and true account of the amount due him, after allowing all credits, and containing a correct description of the property to be charged with such lien, verified by affidavit, but any error or mistake in the account or description does not affect the validity of the lien, if the property can be identified by the description." On an open account, the claim must be filed within six months after the date of the last item. (Sec. 8340, Rev. Codes 1921.)
While under the foregoing statute, and kindred statutes, the[2] labor must be performed under a contract, express or implied, the contract may be with the owner, his agent or trustee. *461
(Love Bros. v. Mardis,
Conceding for the moment that two contracts are here involved, the plaintiff had a lien against the property on each, and, as the statute had not run against the lien under the associates' contract, at the time he filed his claim of lien, the single property was chargeable under each contract. (McCormack v.Bertschinger,
Under Chapter 152, above, as under the ordinary mechanic's[5] lien laws, when the mechanic perfects his lien by compliance with the statute, his lien, theretofore in existence by virtue of the statute, takes effect as of the date of the commencement of his work on the property charged. (ContinentalSupply Co. v. White,
It has been held that there can be no "innocent purchaser" of property upon which an erection has been commenced, as against mechanics' liens which are asserted within the time and in the manner provided by law. (Bell v. Koontz,
In Mellor v. Valentine, above, it is said that "subsequent alienations or incumbrances are not prevented, but made subordinate to the right of the mechanics who, at the time, were engaged in working, and continued afterward to work under previous employment by the vendor," and "where the work done, or materials furnished, is continuous in its character, the contract is to be regarded as an entirety, and the lien attaches for work done and materials furnished, after, as well as before the purchase," citing Phillips on Mechanics' Liens, sections 228, 229, 230; Monroe v. West,
From the foregoing rules we conclude that, when a mechanic is employed to erect an improvement upon the lands of another, by a contract which, in the contemplation of the parties, is to be continuous until the erection is completed, and commences work on the improvement, a lien for his services immediately attaches to the property, which cannot be defeated by the then owner selling the property, and, if the purchaser with knowledge of the facts permits the mechanic to continue the work under the contract, or, as here, requests him to do so, the contract is to be deemed an entirety, and the single lien may be perfected for the amount due both before and after the transfer of the property.
The plaintiff did not seek to hold the Havre Oil Gas Company for that part of the debt incurred prior to the assignment of the lease to it, and, in order to foreclose his lien against the property, it was necessary to make the original associates parties to the "blended" action.
There was no misjoinder of causes of action or parties[6, 7] defendant (Rasmusson v. Liming,
Defendants assert that the court erred in admitting the lien claim in evidence because it "did not give the name of the owner or reputed owner of the leasehold" and was therefore invalid. *464
The general rule is that "whenever the particular statute[8] requires the claim to contain the name of the owner or reputed owner, the omission of this detail is fatal to the lien." (Phillips on Mechanics' Liens, 345, quoted in MissoulaMercantile Co. v. O'Donnell,
Section 8341, above, applies as well to a claim filed under Chapter 152, Laws of 1923. The O'Donnell rule has been twice approved by this court. (Cook v. Gallatin Ry. Co.,
Under Chapter 152, Laws 1923, it is not the owner of the land, but rather the owner of the leasehold at the time of filing the claim, whose name must appear therein. (Sunburst Oil Ref. Co.
v. Callender,
Reverting to the three Montana cases in which the rule was applied, we find that, in the first, the lien would be indexed as against the property of O'Donnell, whereas it should have been in the name of Peterson, the grantee of O'Donnell; in the second, against the Yellowstone Park Railway Company, when it should have been against the Gallatin Company; and, in the third, in the name of McGill-Nevin Company, when it should have been against one Umhang. In no one of these cases would a person searching the record have discovered the existence of the lien. This situation does not exist in the case at bar. While the claim is inartistically drawn, it informs the owner of the leasehold, and the world, that Blose claims a lien for labor performed on the oil-well "drilled by J.J. Hardie and Havre Oil and Gas Company" on land accurately described, and at their special instance and request, which lien is upon the well, the machinery and appurtenances, "and upon the lease for oil and gas purposes upon said parcel of land." Here the county clerk would have no difficulty in abstracting and indexing the lien under the name of the owner of the leasehold, for the claim does "contain the name of the owner" and does show "the name of the person against whose property the lien is filed," and in the action to foreclose *466 the lien the interest of no third person could be affected, as was the case in the three decisions commented upon above. The rule in the O'Donnell Case is announced in Sprague InvestmentCo. v. Mouat Lumber Inv. Co., above, with the addition, "as against these subsequent incumbrancers and grantees."
It was early held in New York that, where the statute does not declare in set terms that the claim shall state who is the owner of the property, the law is satisfied if the claim contains the name of the person against whose interest the lien is claimed and a statement of the facts subjecting that interest to the lien. (Ross v. Simon, 16 Daly, 159, 9 N.Y. Supp. 536.)
In Nebraska it is held that the Act intended to secure those who have contributed to the erection of a building compensation for their labor, remedial in its character, should be given a "most liberal construction" in order to give full effect to its provisions (Way v. Cameron,
The supreme court of North Dakota has declared a similar rule, and, commenting on a contrary decision, said, "It seems to us that this case illustrates a dangerous tendency on the part of courts to tamper with the plain import of statutory law, by reading into unambiguous statutes a conjectured meaning, which the legislature has excluded therefrom," but said that, had an innocent purchaser or encumbrancer dealt with the owner before the action to foreclose, "it might be that the plaintiff would be estopped from setting up the lien as against such purchaser or encumbrancer. But no such question arises in this case." (RedRiver Lumber Co. v. Children of Israel (Friel),
As this court has so often said, the pronouncements in a given[9-11] decision must be read in connection with the facts of the case decided. In each of our cases cited above, the *467
rule invoked was necessary for the protection of third parties, and, while each case was correctly decided, they do not militate against the validity of the present lien, as between the lienor and the owner of the leasehold, whose name appears in the filed claim which was undoubtedly abstracted and indexed under the name of Havre Oil Gas Company, as owner. The fact that it may also have been indexed under other names is immaterial. (Church E.Gates Co. v. Empire City Racing Assn.,
The defendants urge that, because the lien claim declares that the claimant performed the work "at the special instance and request of" the parties named "and the persons and corporations for whose immediate use and benefit the said labor was performed," it is indicated that others than those mentioned were interested in the property. The whole sentence means no more than that the persons mentioned were the parties at whose request, and for whose use and benefit, the labor was performed.
The bare overstatement of the amount due the lienor does not, under the statute, invalidate the lien. (Eskestrand v.Wunder,
No reversible error appearing in the record, the judgment must be affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN, STEWART and ANDERSON concur.
Rehearing denied April 13, 1934. *468
