69 Colo. 156 | Colo. | 1918
delivered the opinion of the court.
On September 1, 1908, Joseph Albo commenced the construction of a building on the lots in controversy then owned by A. & R. Lopresto. On April 19, 1909, there was executed by the Loprestos and recorded a deed of trust on the property to secure payment of their- $5,500 note to A. I. Lindsey. On June 25/1909, Albo filed for record his mechanic’s lien statement. On September 28th, following, the Loprestos executed a second deed of trust on the property to secure the payment of their $800 note to Lindsey, recorded same date. . On January 14, 1910, Albo filed his complaint in the district court to enforce his lien making the Loprestos only defendants. On February Sd, following Loprestos conveyed the property to Charles Lopresto, which deed was recorded February 5th. Summons was issued in the Albo suit February 9, 1910, and was personally served on the defendants February 17th following. On May 20, 1910, judgment was rendered in favor of Albo, decreeing a mechanic’s lien and ordering sale. On December 8th following, a lien judgment was obtained in the same court by one Bonal as plaintiff against - A. & R. Lo-presto, A. I. Lindsey, and the public trustee of Las Animas County, as defendants. This lien was for materials furnished in the construction of this building. It wms decreed to have priority over both deeds of trust, and sale under it was ordered. On February 20, 1911, the property was sold by the public trustee under the second deed of trust to McGlashan for $1,105. On December 7th following, a trustee’s deed-was executed on this sale, recorded December 8th, conveying the property to the plaintiffs in error, Hawkins and McGlashan, the latter having assigned
Section 4034, Revised Statutes 1908, provides that:
“No lien claimed by virtue of this act shall hold the property longer than six months after the- completion of the building.”
Section 4035 provides that:
“The owner or owners of the property to which such lien shall have attached, and all other parties claiming-of record any right, title, interest or equity therein, whose title or interests are to be charged with or affected by such lien, shall be made parties to the action.”
The contention is that the trust deeds and the Bonal lien were of record when the suit was brought, and that the claimants thereunder should have been made parties defendants in the Albo suit; that as they were not, their interest in the property was not affected by it, and that
The defendants in error claim that subsequent or junior incumbrancers, although of record at the time the suit is brought to enforce the lien, are not indispensable or necessary parties in'order to establish the validity of the lien against the property, or to thereafter have it recognized as valid against them in another action brought after the six-month period would have expired as against the owner had the former suit against them never been instituted. We cannot agree with this latter contention. The result would be to ignore the statute, which says that all such of record shall be made parties. In this respect, it differs from our former acts, the last of which provided that: “The owner of the property of which such lien shall have attached shall be made a party to the action.”
The case of San Juan Hardware Co. v. Carrothers, 7 Colo. App. 413, 43 Pac. 1053, relied upon does not sustain the defendants in error’s contention. In commenting upon the six-months’ limitation clause then in force, the court (7 Colo. App. at page 418, 43 Pac. at page 1055) says:
“Taken by itself, this would seem to be a sweeping clause, which might possibly be held broad enough to necessitate the commencement of a suit against all persons to be affected by the foreclosure. The following section (2152) removes any question respecting it. It designates what persons shall be made parties. According, to the latter section, all persons who have filed lien statements and who claim liens by virtue of the act are bound to be brought in. Under the very well established doctrine, ‘Expressio unius est exclusio alterius’, the expression of the necessity to make lien claimants parties excludes any idea that the legislature intended by the preceding section to compel the claimant,*160 in order to establish his rights, to bring a suit within the time limited against third persons who were interested in the property.”
We agree with this conclusion, but instead of sustaining the defendants’ contention it leads irresistibly to the contrary. Our present act provides that not only the owner, but other parties claiming of record any right, title, interest, or equity therein whose title or interest are to be charged with or affected by such lien, shall be made parties. By the reasoning in the opinion quoted from, it places other claimants of record in the same category as the owner, and other lien claimants were under the old statute concerning the six-month limitation.
The decree recognizes that the former judgment did not bind the interest of the plaintiffs in error, but holds that the lien itself was prior to their interest in point of time. In order to decide this question the court went into the facts upon which the lien judgment was based, and ascertained the date of the completion of the building, the date when, the lien attached, the date of recording the deed of trust, etc.; for these purposes it ignored the lien judgment. It should likewise have been ignored in determining the six-month limitation period as between the parties to this action. This conclusion is supported by the following authorities: Stoermer v. People’s Savings Bank, 152 Ind. 104, 52 N. E. 606; Union National Savings & Loan Ass’n v. Helberg, 152 Ind. 139, 51 N. E. 916; Deming-Colborn et al. Co. v. Union Nat. S. & L. Ass’n, 151 Ind. 463, 51 N. E. 936; Goodwin.v. Cunningham, 54 Neb. 11, 74 N. W. 315; Monroe v. Hanson, 47 Neb. 30, 66 N. W. 12; Green & Co. v. Sanford, 34 Neb. 363, 51 N. W. 967; Smith et al. v. Hurd et al., 50 Minn. 503, 52 N. W. 922, 36 Am. St. Rep. 661; Hokanson v. Gunderson et al., 54 Minn. 499, 56 N. W. 172, 40 Am. St. Rep. 354; Burbank v. Wright, 44 Minn. 544, 47 N. W. 162; Corser v. Kindred, 40 Minn. 467, 42 N. W. 297; Clark et al. v. Manning et al., 95 Ill. 580; Lamb v. Campbell, 19 Ill. App. 272; Badger Lumber Co. v. Staley et al., 141 Mo. App. 295, 125 S. W. 779.
The judgment will be reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.