Haines Commercial Co. v. Grabill

152 P. 877 | Or. | 1915

Mr. Justice Benson

delivered the opinion of the court.

1. The first assignment of error relates to the overruling of the demurrer. A careful examination of the complaint, set out in the statement supra, convinces us that the allegations are ample to state a cause of suit. Everything that is required to be contained in a valid lien is therein alleged, and the further allegation that a notice containing the same facts had been duly filed and recorded and that the debt was still unpaid.

The second assignment is to the effect that the evidence fails to show who created the obligations mentioned in the complaint, but the latter clearly alleges that the claimant was employed by the defendant corporations, acting through one R. R. McGaughey, the duly authorized agent for such purpose, and the stipulation of facts concedes that the plaintiff was employed by the Highland Development Company, as lessee, through McG-aughey, as such agent.

2. The third assignment attacks the sufficiency of the lien notices because they do not segregate the demand for overtime work; but we do not recall, neither has our attention been directed to, any statutory provisions requiring such segregation. The statute (Section 7445, L. O. L.) prescribes the contents of the notice thus:

“A true statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, and also a description of the property to be charged with such lien sufficient for identification. ’ ’

All these requirements are fully complied with in the notices sued upon.

3. The next and last assignment is based upon appellant’s contention that the trust deed or mortgage is prior in time and superior to the plaintiff’s liens. Appellant, under this assignment, contends that the title of the act under which the liens are claimed is insufficient to sustain the section thereof giving laborers and materialmen a preference. The original act was passed by the legislature in 1891, the title reading thus:

“An act for securing liens for laborers on mining claims, and materialmen and prescribing the manner of their enforcement”: Laws of 1891, p. 76.

This act did not contain any provision for preferring such claims, and in 1907 the act was amended under a title reading as follows:

“An act to amend Sections 5668, 5669, 5670, 5671, and 5672, of Bellinger and Cotton’s Annotated Codes and Statutes of Oregon, and providing for liens in favor of any person performing labor in or upon, or furnishing material or supplies, in or for the development or operation of any mine, lode, mining claim or deposit, yielding or containing coal, metal or mineral of any kind, or on any road, tramway, trail, flume, ditch, or pipe-line, building, structure or superstructure, in, upon, or used in connection with such mine, lode, deposit or mining claim, or for furnishing or transporting material or supplies to such mine, lode, deposit, mining claim, building, structure or superstructure, used in the operation or development thereof, or for labor performed in transporting material, or the product from such mine, lode, mining claim or deposit, prescribing duties of persons claiming exemptions therefrom, and providing penalties for the enforcement of the provisions of the act and regulating the priority of such liens, and providing the manner for the foreclosure of such liens”: Laws 1907, p. 293.

This amendment gives to such liens a priority over all other claims against the property which is subject to the liens, and the title sufficiently expresses the purpose. The act was again amended in 1911 under a title reading thus:

“An act to amend Section 7447 of Lord’s Oregon Laws, to provide for the priority of mortgages and for the posting and recording of the same”: Chapter 141, Laws 1911.

It does not require any serious argument to show that the titles of the acts of 1907 and 1911 are quite sufficient to comply with the constitutional requirement.

4. If we comprehend counsel’s further contention, it is that the act deprives the mortgagee of his property right, without due process of law, in that it eúablés the owner of the mine, after mortgaging it, to contract debts for labor and materials which may absorb, by reason of the preference, all the security. It must be remembered that the act of 1907 became a law before appellant’s mortgage contract was executed. In the case of Provident Inst. v. Jersey City, 113 U. S. 506 (28 L. Ed. 1102, 5 Sup. Ct. Rep. 612), Mr. Justice Bradley, speaking for the court, says:

“When the complainant took its mortgages, it knew what the law was; it knew that, by the law, if the mortgaged lot should be supplied with Passaic water by the city authorities, the rent of that water, as regulated and exacted by them, would be a first lien on the lot. It chose to take its mortgages subject to this law; and it is idle to contend that a postponement of its lien to' that of the water rents, whether after-accruing or not, is a deprivation of its property without due process of law.”

We might multiply citations of like tenor, hut we deem it unnecessary. Our attention has not been called to any converse authority.

5. We note, however, that the decree of the trial court gives plaintiffs a personal judgment against the Highland Gold Mines Company, which is clearly an error.

The decree of the trial court is therefore modified to the extent of eliminating such personal judgment, and is affirmed as to the remainder.

Modified.

Rehearing Denied.