13 Colo. App. 196 | Colo. Ct. App. | 1899
As assignee of Barnett & Troutman, who were contractors and builders, the Chicago Lumber Company brought this suit to enforce a mechanic’s lien which the contractors had filed on certain property in the city of Denver. Part of the title must be stated to show the origin of the claims of the contractors and to determine their right to proceed under the statute. As to some dates the record is' not complete. Prior to any of these dealings Mrs. Cordes was the owner of the lots. For the convenience of the parties Mrs. Cordes executed three deeds to Frank S. Woodbury and put them in escrow. The date of the escrow is not certain, but the agreement between Mrs. Cordes and Peterson bears date February 24, 1893. This is the date of the deeds and they were probably put in the bank at the time the negotiations between Mrs. Cordes and Peterson were completed. Prior to these arrangements and the execution of the escrow Peterson and Wood-bury made a contract. This bears date of February 20,1893, and recites that there had been placed in escrow three deeds on certain lots by Feldhauser to Woodbury, whereby it had been provided that the deeds could be taken up on or before a year from date with interest at seven per cent and then proceeded, that it was agreed between Peterson and Wood-bury that Peters on should erect one or more houses on the ground, superintend the construction and O. K. the bills, all of which Woodbury was to pay and charge interest thereon at the rate of ten per cent until the buildings were sold or the money otherwise provided. It was further agreed that Peterson and Woodbury should divide the profits that might arise from the sale of the houses or any portion of the ground. Recalling the agreement between Mrs. Cordes and Peterson, which was probably filed with the deeds, it was therein recited that Mrs. Coldes agreed to sell the lots for $10,000 which
At the threshold of the case it is urged that this court may not consider the record because there is no proper bill of exceptions. The plaintiff saved exceptions to the judgment, took time to file a bond and the bill, and thereafter and within the time limited and on May 5, 1895, tendered it to the trial judge. This tender is not questioned. The judge signed it but did not attach his seal. The bill was filed and thereafter the judge sealed it. The defendants insist the judge could not seal it after it had been filed, and that the plaintiff is remediless. We do not so understand the practice. As the rule has been expressed by the supreme courtj had the bill come up in its original condition leáve would have been given the plaintiff to withdraw it to permit the judge to affix his seal. It is well settled that wherever the judge marks the date of the tender which is within the specified time, although it may not be signed or sealed until after this time has gone by, the tender and the indorsement protect the plaintiff’s rights. The judge may after the time limited properly authenticate the bill. It is likewise true the bill may be withdrawn to have the seal affixed. The seasonable tender preserves the party’s rights and he may not be prejudiced by the failure or neglect of the judge to sign or seal it. This proposition must be resolved against the defendants. Fechheimer v. Trounsteine, 12 Colo. 282; Williams v. The People, 25 Colo. 251.
We now come to another proposition which may be well disposed of at this point. The lien • act has been subject to divers amendments. The act of 1883, General Statutes, 1883, sections 21 to 31 et seq., was in force until 1889. Its validity is unquestioned, and its terms and conditions have been
We now come to the principal proposition respecting the validity of these liens. They were not filed under the act of 1893. The force and effect of this later act and the cases to which it is properly applicable have heretofore been before this court for consideration. The first case in which it came under examination was Orman v. The Crystal River Ry. Co., 5 Colo. App. 493. The next was Small v. Foley, 8 Colo. App. 435. In the first the question presented concerned the time when the suit should have been begun. The court decided, speaking through me, that it w,as quite within the power of the legislature to alter the time within 'which a suit might be commenced by an act which took effect after the lien accrued but before the right to sue arose. In common with most of the authorities we held that the time when a suit should be brought was a matter of procedure and within the control of the legislature so long as reasonable time was provided. This was the sole question in the ease. An expression is found in the opinion which was possibly liable to misconception and which seems to have been misunderstood by the trial court. It was construed as an adjudication that as to the form and substance and as to the procedure necessary to preserve the lien, the act of 1893 must be followed. This was not the purpose of the decision nor was it within
We are now brought face to face with the defendants’ theory that under the acts of 1883 or 1889, or either one, Woodbury had no title which could be incumbered by a lien and that the defendants therefore have a right to insist upon their security which must be preferred to the lien even if it was properly filed and is held good. To understand this question a matter must be stated which has been reserved to the present that it may be more clear. Woodbury’s deed was not taken out of escrow nor was it put on record until the
The defendants insist, however, that under the statute the
In the federal case neither the contracting parties nor the contractors ever had any title or interest in the land except subject to the completion of the ditch whereon the lien was sought. The work was done by the contractors and there
The point which the defendants urge, that the lien was not filed against the owner, is not well taken. A lien should be filed against the one who owns at the time the claim is filed, or in whom it may have vested between the time the work was commenced and its conclusion. The owner is not necessarily the one who owns at the time the work is begun. The title may be transferred. The doctrine of relation has a limited application to the question of ownership. As said by the supreme court, it is a fiction adopted to cut off claims against the lien asserted on behalf of interests or title which may accrue intermediate the commencement of the work and filing the lien. The owner is the one in whom the title stands when the claim is filed. He is the owner for the purposes of the statement. The owner has been held to be the one who is to be affected by the lien, and not necessarily the one who authorized the improvement. They may be one and the same person, or they may be different persons. Under the act of 1893, which would be the owner for the purposes of notice, we do not .decide. All we intend to decide in this case is that Frank S. Woodbury was the owner within the statute at the time the work was done and at the time the lien was filed. We do not regard the ownership of Mrs. Cordes as at all important in the determination of the question. Corbett et al. v. Chambers et al., 109 Cal. 178; Rice v. Carmichael et al., 4 Colo. App. 84.
Great stress has been laid by the defendants on the consideration that this is a suit in equity and the court is bound to determine the rights of the parties wholly on equitable considerations. This we think we have done. As the record stands, the Dillons are in no sense innocent parties, nor so far as the proof goes and so far as their pleadings go, are they persons who took a security without notice or knowledge
As already suggested, we leave undecided what may possibly become a very important question, the character of the work which was last done by the contractors. This is a matter of fact which the lower court must determine on evi
The court erred in refusing to admit the liens in evidence, and for this error the case must be reversed.
Reversed.