58 W. Va. 162 | W. Va. | 1905
Complaining of a decree of the circuit court of Mineral county, in a suit brought by James Grant to enforce a mechanic’s lien against the property of the Cumberland Yalley Cement Company, a corporation, given by section 7 of chapter 75 of the Code of 1899, said corporation has appealed, assigning, as grounds of error, the overruling of its demurrer to the bill, premature entry of an order of reference, and provision for the sale of its property for the satisfaction of prior liens thereon as well as the mechanic’s lien, so as to pass the estate in fee simple therein instead of the sale of its mere equity of redemption in its real estate,
Upon the demurrer, it is insisted (1) that the account filed in the clerk’s office of the county court for the preservation of the lien lacks some of the requisites of “a just and true account of the amount due,” after allowing all credits; (2) that said account does not show the services, for which the lien is claimed, to have been rendered within nine months before the lien was recorded; (3) that prior lienors were made parties to the bill.
The account, with the affidavit, verifying it, an attested copy of which is exhibited with, and made part of, the bill, reads as follows:
*164 “The Cumberland Valley Cement Company
To James Grant, Dr.
1903.
May 17tli To Salary as Superintendent under contract with said Company from May 17th, 1899, to May 17th, 1903, four years at $1200 per year to he paid monthly $100 permonth. $ 4800.00
Or.
By aggregate of all payments made to said James Grant on account of Salary up to this date.$ 4000.00
Balance due James Grant $800.00’’
“State of Maryland, County of Allegheny, to-wit: James Grant, being first duly sworn, deposes and says, that the foregoing is a just and true account of the amount due him (said James Grant) after allowing all credits from the Cumberland Yalley Cement Company, a corporation duly incorporated and organized under the laws of the State of West Virginia, and having its plant, works, real estate and personal property at Cedar Cliff, in Mineral county, West Virginia, for work and labor expended and performed for said Company by him as Superintendent, under a contract made on the 17th day of May, 1899. And said affiant further says, that the real estate of said corporation is a tract of 140 acres of land, more or less situate, lying and being at and neat Cedar Cliff, on the North Branch of the Potomac River and Knobley Mountain, in said county of Mineral, adjoining lands of Carrie Brady and others, which was conveyed to said Cumberland Valley Cement Company by S. Dana Lincoln and wife, by deed dated 13th of June, 1899, recorded in the office of the Clerk of the County Court of Mineral County, West Virginia, in Deed Book Number 20 pages 606 & 607, and on which tract are situated the works of said Company, at which the said James Grant performed the work and labor aforesaid. And this account is filed for the purpose of securing to said James Grant the benefit of the lien therefor on all the real estate and personal property of said Company which is provided for by the statutes of the state of West Virginia, and the work and labor for the value of which this lien is claimed was not performed more than nine months before the filing of this account. James Grant.”
A case relied upon as an authority against the form of statement adopted is Rude v. Mitchell, 97 Mo. 365, cited in Phil. Mech. Liens section 350, holding as follows: “A lumping item of the whole contract price on the one hand and the credits on the other is no compliance with the law.” But this language must be referred to its subject matter, the account filed in that case, for illustration. It is too general to permit application to all accounts. They differ in nature, according to the subject matter. The one considered in the case cited was under a contract to make additions to a building, thus involving both labor and materials of several different kinds, and the account was lumped into three large items, without any indication whatever as to how much was for labor and how much for materials. Here, it appears on the face of the account that the basis of it is labor and the kind, amount and price are all plainly disclosed. What reason is there for requiring further specification?
To require more would impose upon the contractor duties which are outside of the purpose underlying the statute, which is that the owner may be able to ascertain the correctness and reasonableness of the demand asserted against his property and that purchasers and encumbrancers may have information concerning the nature and amount of the lien. Phil. Mech. Liens section 349. “The intention was that the mere inspection of a record to be found at a particular place should disclose all the information necessary in order to enable those interested therein to determine as to the existence of liens on the property.” Loan Co. v. Furbush, 80 Fed. Rep. 631. Such being the purpose, it obviously follows that a substantial, though not technical, compliance with the statute is sufficient, and this Court has so decided in U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698. “All that is required is that enough should ax^pear on the face of the statement to point the way to successful inquiry.” Phil. Mech. Liens section 350, p. 617, citing Knabb's Appeal, 10 Pa. St. 186; McLaughlin v. Shaughnessey, 42 Miss. 520; Wilvert v. Sunbury, 81 Pa. 27.
An attested copy of the account and sworn statement is
The objections based upon the bringing in of prior and subsequent lienors as defendants and upon the direction of the decree to sell the property for the satisfaction and discharge of all the liens reported by the commissioner, maybe disposed of together; for they are founded upon one and the same conception and view of the nature of the suit. Section 3 of chapter of the Code, concerning mechanics’ liens, provides that persons who are entitled to assert such a lien shall have liens upon the house or other structure for which labor or materials are furnished “and upon the interest of the owner in the lot or lands on which the same may stand, orto which it may bo removed.” As there was a prior mortgage and also prior deed of trust on the real estate of
In some, jurisdictions the courts hold that prior lienors are not necessary or proper parties. Tompkins v. Horton, 25 N. J. Eq. 284; Smith v. Shaffer, 46 Md. 573; Portones v. Badenock, 132 Ill. 377. Who are necessary parties is determined in the various states by the statutes providing for the enforcement of the lien. In New Jersey, the action is at law and the judgment enforced by execution. In Marjdand, the statute authorizes enforcement by bill in equity and says
The order of reference was not premature, for, at the time it was made, the bill and its exhibits showed a number of liens. The requirement that a prima, facie case be made
For the foregoing reasons, the decree complained of will be affirmed.
Affirmed.