103 N.W. 398 | N.D. | 1905
Lead Opinion
This is an action to' foreclose a mechanic’s lien upon a building. The plaintiff’s assignor furnished the lumber for such building in August, 1896. At that time the land on which the building was placed was occupied by the defendant under a homestead entry made pursuant to the laws of the United States. The defendant relies upon that fact to defeat the plaintiff’s lien. After the plaintiff had rested his case he moved to amend the prayer of his complaint to the effect that he be declared entitled to a judgment against the defendant for the sum of $74.02, and that such judgment be declared a lien upon the buildings described in the complaint; that a special execution issue against said building, and that the same be sold under such execution; that the purchaser of such building at said sale be authorized to remove the same from the land on which it was placed within forty days after the sale thereof. This amendment was allowed, and at the close of the trial the court made findings of fact and conclusions of law in plaintiff’s favor, and judgment was entered ordering the sale and removal of such building in accordance with the relief asked in the amended complaint. The defendant appeals from the judgment, and asks for a review of the entire case under section 5630, Rev. Codes 1889. Among other contentions, it is insisted by the appellant that the plaintiff is not entitled to a lien either upon the land or upon the building erected thereon. The basis of this contention is that the title to the land on which the building was erected was in the United States, and that such land is exempt from sale under execution for any debts created while the title remained in the United States, and that under the law of this state no> lien
It is well settled in this state and in others that lands held under the United States homestead laws, prior to the issuance of patent, are exempt from mechanics’ liens based on contracts made while the title to such lands remained in the United States. Mahon v. Surerus, 9 N. D. 57, 81 N. W. 64; Gull River Lumber Co. v. Briggs, 9 N. D. 485, 84 N. W. 349; Kansas Lumber Co. v. Jones, 32 Kan. 195, 4 Pac. 74; Paige v. Peters, 70 Wis. 178, 35 N. W. 328, 5 Am. St. Rep. 156; Fink v. O’Neill, 106 U. S. 283, 1 Sup. Ct. 325, 27 L. Ed. 196. In Mahon v. Surerus, supra, this court held that, under the mechanic’s lien law as it then existed under the Compiled Laws, a lien was given on the building separate from a lien on the land, and that where the occupant had no title to the land the lien could be enforced against the building, and the building removed from the land after sale under foreclosure of the lien. Section 5480, Comp. Laws 1887, authorized such sale and removal. Said section 5480 was repealed under the revision of the Code in 1895. In Gull River Lumber Co. v. Briggs, supra, this court held that the effect of the repeal of section 5480, Comp. Laws 1887, is to destroy the right to a lien upon a building when the lienee has no interest in the land, or the land is exempt from sale under liens, as in this case. The court said: “In all other cases the building must remain upon the land; but a lien upon a building that could in no manner be utilized would be so barren of benefits that we cannot presume the legislature ever intended to confer it.” That case holds, in construing this same statute, that no lien attaches to the land or to the building unless the owner of the building has some interest or estate in the land out of which a lien can be enforced, and that a building cannot be sold separately from the land to satisfy a lien except in the cases prescribed by sections 4794 and 4795, Rev. Codes 1899; that is, in cases of leasehold interests that have been forfeited, and in cases of incumbrances on the land when the materials are furnished. We think the latter case decisive of the case at bar. This decision is assailed by counsel for respondent. In our opinion, the question of its correctness is not now open for discussion. A rule of property was announced by it,
The judgment is reversed, and the district court is directed to dismiss the action.
Dissenting Opinion
I dissent. In my opinion, the reasons assigned for the decision in Lumber Co. v. Briggs, 9 N. D. 485, 84 N. W. 349, were unsound and ought to be overruled. The only question presented in that case was the sufficiency of the complaint on demurrer. The complaint did not show that the defendant was rightfully in possession of the premises. Under the familiar rule that a pleading demurred to must be construed against the pleader, the presumption was that the defendant was a trespasser, and, as a mechanic’s lien cannot be acquired on a building erected by a trespasser, the demurrer was properly sustained. No other question was presented. In my opinion, it was unnecessary in that case to consider the question as to whether a building could be sold under a mechanic’s lien and be removed. I do not think that decision has become a rule of property. On the contrary, under the conditions existing in this state, I am convinced that adherence to that decision will do a great injury to a large number of meritorious claimants, who have extended credit for labor and material to the "settlers on public lands m the belief that they were fully protected by the lien laws of the state. My investigations have convinced me that the decision in Lumber Co. v. Briggs is without authority to- sustain it, and violates both the letter and spirit of the statute. I can find' no case which sustains the views expressed in Lumber Co. v. Briggs. The case of Kellogg v. Co., 1 Wash. 407, 25 Pac. 461, is not in point. That case involved the construction of the mechanic’s lien law of that state, which was construed (erroneously, I think) to create a lien on substantially the same
In the Washington case the lien statement did not sufficiently identify the land, but it was urged that the court should decree a lien on the building alone. It was claimed that the statute should be construed so as to permit a lien on the building independently of the land. The court -held “that there can be no- such lien on the building separate from the land,” and the Washington statute (it was held) would not bear that construction. In support of its construction, the court calls attention, obiter, to the fact that the statute does not provide for removal of buildings in case of sale, and that obiter dictum is the only thing in the case which tends to support the decision in Lumber Co. v. Briggs. As already stated, the New Jersey cases cited in the majority opinion construe the language of a statute entirely different from our own, and have no application. There is no expression in either of the cases from New Jersey from which it can be inferred that the court considered that the absence from the statute of a provision for the removal of a building curtailed the right to a lien. On the contrary, I find this language in Coddington v. Dock Co., 31 N. J. Law, 481: “A fixture is, during the time it is so fixed, land, but liable to be separated therefrom -by divers operations of law, or at the will of the tenant. But the mechanic’s lien must attach to it while it is land, and by virtue of its being land. If the lien attaches to it while it is still land, the special fi. fa. sells the building, and the purchaser under it can remove it in the same manner as the owner could before the lien attached, by virtue of its being a trade fixture.” This language, it seems to me, clearly recognizes and sup
The earlier lien laws of Massachusetts were siprilar in terms to those of New Jersey, and received, the same construction; and this construction was adhered to even after the law had been amended. The decisions of that state construing the amended statutes were, however, expressly disapproved in Forbes v. Yacht Club, 175 Mass. 432, 56 N. E. 615, and it is there- held that a lien may attach to a building and the-same may be sold, even though the owner thereof has no interest in the land. A mechanic’s lien under the amended statute involved in that case is given in substantially the samé language as by the statutes of this state. The Massachusetts statute does not, however, make any provisions for separate sale and removal of buildings. The courts of that state seem to hold that the right to a separate lien gives the right to a separate sale. The following cases based on similar laws,- where there was no express provision for a separate sale hnd removal, announce the sarde principle: Ombony v. Jones, 19 N. Y. 234; Dean v. Pyncheon, 3 Pin. 17.
Common sense, authority and the elementary rules for statutory construction alike cry out against the views expressed in Lumber Co. v. Briggs. In this case there are no rights of third persons involved. The defendant owns the land and the building, and can remove it. at will. He owes the debt which it was the plain intent of the statute should be secured by a lien on the building. I know of no rule of law or principle of equity which in any way prevents the lien from being enforced by a sale of the building which will vest the purchaser with the same right to remove it as this defendant.
The proposition that there can be no separate lien on the building enforceable by the .sale of the building alone and removal thereof from the -land is, in my opinion, erroneous, and the statement to that effect in Mahon v. Surerus, 9 N. D. 57, 81 N. W. 64, and in
The reason for the amendment made by the revision of 1895 is easily found. It is a well known fact that the territorial mechanic’s lien law was copied verbatim from the Iowa law as it existed prior to 1816 (chapter 8, tit. 14, Code Iowa 1813). Experience had shown that the provisions of that law giving the right of removal of buildings from incumbered lands were inadequate to give relief in all cases. Getchell v. Allen, 34 Iowa, 559. The law was changed in 1816. Acts 16th Gen. Assem. c. 100; McClairis Ann. Code, tit. 14, c. 8. Among other changes so made was the adoption of a new provision in regard to incumbered lands. Section 9, subdivision 4; McLain’s Code Iowa 1888, section 3311, subd. 4. This change of the Iowa law was incorporated into the laws of this state by the revision of 1895, and is found in section 4195, Rev. Codes 1899, which is, with the exception of some slight changes of phraseology, a copy of subdivision 4, section 3311, Mc-Clairis Code Iowa 1888. The change was made to render the law more effective, so as to give the mechanic or material-man the benefit of his lien on the building in cases where, by reason of the superior rights of third persons, the building could not be removed.
Even if the decision in Lumber Co. v. Briggs can be properly said to be in the nature of a rule of property, yet I am for overruling it, because the slight injury which might possibly result in a few individual instances should not, in my opinion, weigh against the certainty of mischief, which will surely result from a blind adherence to so bad a precedent.
It is not the mere fact that a given decision of the Supreme Court announces a rule which relates to property rights that gives
I feel safe in saying, from my knowledge of conditions in this state, that the rule in Lumber Co. v. Briggs, has never become the law by common opinion and practice. I think it is extremely improbable that any person has bought land burdened with a mechanic’s lien, such as the one in question, paid the purchase price, and knowingly taken his chances on its validity or invalidity in reliance on the previous decision in question. If any such case could be found, such an isolated case of individual hardship should not weigh as a feather against our duty to declare the law as it is, and thus protect and enforce the rights -of the far greater number who have, in ignorance of that decision and in reliance on the plain language -of the statute, extended credit for labor and material to aid in the upbuilding of this new state.