100 Minn. 380 | Minn. | 1907
Lead Opinion
This was an appeal from an order of the district court of Ramsey county sustaining the demurrer of respondents to the amended complaint of the appellants in an action to foreclose an alleged mechanic’s lien upon -the property of respondents.
The first question concerns the sufficiency of the description of the premises in the lien statement. The correct description was lot 16, block 18, of a given addition. The actual description was a house located on lot 18, block 18, of the addition, properly described, “which is known and described as No. 1153 Ashland avenue.” The defendants properly insist that the test of the sufficiency of such a description is this: Is it sufficient to enable one interested to recognize and locate the property with reasonable certainty? The statute expressly provides (section 6237, G. S. 1891) that the validity of the lien shall not De affected by any inaccuracy as to description or name, of the owner, provided it can be recognized from the description given. In Northwestern Cement & Concrete Pavement Co. v. Norwegian-Danish E. L. A. Seminary, 43 Minn. 449, 45 N. W. 868, the description referred properly to the plat, but also described the building thereon as being known as “Augsburg Seminary.” No such building was situated on the lands. The court held.that'the premises having been once sufficiently described the addition of a circumstance false or mistaken did not vitiate it. The test there laid down was: “It is enough that the description points out and indicates the premises, so that, by applying it to the land, it could be found and identified.” Judged by this test, the present description is valid. In Tulloch v. Rogers, 52 Minn. 114, 53 N. W. 1063, the lien statement described the building, “known as the ‘Hardy Hall,’ situated * * * on the northwest quarter of the southwest quarter” of a given section, township, and range. The description was true, except that the basement in question was situated on the N. E., instead of the N. W.¡ of the said S. W. This was held sufficient, in view of the well-settled rule of construction previously referred to, and on the further principle “that less certainty of description is required in the case of affidavits for liens than in deeds of conveyance.” This was in accordance with the well-settled rule in this court that the description of premises in lien statements is liberally construed in favor of the' lien. Evans v. Sanford, 65
The second question is whether the action was commenced within, the time limited by statute. The date of furnishing the last item, as-given by the statement, was December 14, 1904. The complaint was-verified December 20, and filed on December 21, 1905. The summons-was served December 22, 1905. The complaint alleges that through inadvertence and mistake the lien statement so specified as the date-of the last item an incorrect date, and that the correct date was January 20, 1905. The statute provides that the statement shall contains the first and last dates of furnishing material or labor. It also provides that the action to enforce the lien shall be commenced within one-year from the time of furnishing the last item of labor or material. Daws 1889, p. 317, c. 200, § 10. The question then arises whether the statute refers to the true date at which the last item was in actual fact furnished, or whether the lien claimant is bound by his statement as to that date given in his affidavit for lien. We are of opinion that he may in this action show what the true date is, and if the action be-brought within a year from the time of that true date, the- lien claimant may prevail.'
An affidavit for a lien is not a process, a pleading, a judgment, nor a conveyance, but merely a notice of a claim of a mechanic or material-man. Northwestern Cement & Concrete Pavement Co. v. Norwegian--Danish E. L. A. Seminary, 43 Minn. 449, 45 N. W. 868. Statutes-governing the foreclosure of a mechanic’s lien are remedial in their nature, and hence should be liberally construed. 20 Am. & Eng. Enc. (2d Ed.) 522, 523, contains a statement of the statutes of the various, states, in some of which the action is required to be commenced within-a given period from the date of filing the lien statement, while in other states the action is to be begun within a given period from the-time of furnishing the material and performing the services. In Steinmetz v. St. Paul Trust Co., 50 Minn. 445, 52 N. W. 915, it was held that the action must be commenced within a year from the time the lien accrued; but whether the date of furnishing the last item was the date-stated in the lien statement, or the actual lien, was not determined. In Lundell v. Ahlman, 53 Minn. 57, 54 N. W. 936, it was held that the last item stated in the lien statement, if not proved, is not fatal to
Order reversed.
Dissenting Opinion
(dissenting).
I am of the opinion that the limitation of one year, within which an action to enforce a mechanic’s lien, begins to run from the date of furnishing the last item of labor or material as fixed by the lien statement filed, and for this reason I dissent from the decision of the court to the contrary.
Dissenting Opinion
(dissenting).
I concur with the Chief Justice.
