69 W. Va. 682 | W. Va. | 1911
Appellants, White Bros., plaintiffs below, complain of two decrees of the circuit court, the first, pronounced February 24, 1908, adjudicating the principles of the cause, denying them any relief, and decreeing a sale of the property of the defendant corporation to satisfy other debts and liens proven and decreed thereon; the second, pronounced February 10, 1909, denying their motion and refusing, on appellants’ petition filed, to reverse and set aside said former decree so far as it affected their claim.
Appellants sought to establish and have decreed against the property of the defendant company a lien for certain materials alleged to have been furnished by them to it, under contract, to be used, and which the bills allege were used by it in the erection and construction of its said railway in Wetzel and Tyler counties, and the same property mentioned and described in their account therefor filed with and made a part of said bills.
So far as we can see the averments of the original and amended bills satisfy all requirements of a bill to enforce such a lien, viz: The existence of 'the contract; the terms thereof; that the material was furnished pursuant to the contract; the filing of just and true account of the amount due thereon to them with the clerk of the county court within the time required by law; a description of the property against which the lien is asserted; the name of the owner thereof, and that the suit was brought within the time required by law, and the existence of the debt. Lunsford v. Wren, 64 W. Va. 458, and cases cited.
These bills were not demurred to, nor were the allegations thereof controverted by any of the answers filed. Both bills specifically allege that within sixty days from the time appellants ceased to furnish said material they filed with the clerk of the county court of said Wetzel county a just and true account of the amount due and owing them from said railway company after allowing all credits, together with a description of the property intended to be covered by said lien, duly sworn to January 19, 1904, and which Avas duly recorded in Mechanic’s
The correctness of the decrees below depend on the construction that should be given our statute, section 4, ch. 75, Code (1906). It provides: “Every lien provided for in the second and third sections shall be discharged unless the person desiring to avail himself thereof shall, within sixty days after he ceases to labor on, or furnish material or machinery for such building or other structure, file with the clerk of the county court of the county, in which the same is situated, a just and true account of the amount due him, after allowing all credits, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which account shall be sworn to by the person claiming the lien, or some person in his behalf.” Appellants’ lien, “Exhibit E” with the bill, apparently the original account filed with the ■ clerk of the county court, is dated January 1, 1904, and is sworn to January 19, 1904. The account purports to be itemized, beginning September 3, and running through September, October, November and ending December 16, and showing a total balance, after allowing credits, of $2,920.37; but at no other place in the account, except the date January 1, 1904, does the year appear. On the back of the account there is this' endorsement: “Clerk’s Office, County Court, Wetzel County, W. Va. Filed for record this 19th day of Jan’y. A. D. 1904, at 10:40 o’clock A. M. Kecorded in Book 1, of page 396.” In the return of the clerk to a writ of certiorari bringing up this memorandum, he certifies this note to be by the clerk, and a part of the record of the cause. It does not appear to be signed by the clerk. If, however, the facts alleged in the bills be not impugned by this exhibit, or the memorandum thereon, they must be regarded as facts established for the purpose of this suit. The contention of appellees, however, is that as the lien does not show affirmatively, on its face, as they contend it must, every fact necessary to be alleged and proven to make it a good and valid lien on the property, the lien
It has been suggested, however, .that the exhibit contradicts the allegations, of the bills, in that it fails to show on its face, or by the certificate of the clerk, that it was filed within the time prescribed and that although the allegations of the bill be sufficient and be taken for confessed, the exhibit contradicting them must be looked to rather than the bill itself to sustain the lien. The law undoubtedly is, that in cases of conflict between the instrument sued on, or vouched for the allegations of the bill, the instrument itself and not the bill will be looked to for its correct interpretation, and the facts alleged as appear therein. Richardson v. Eberl, 61 W. Va. 523: Board of Education v. Berry, 62 W. Va. 434; Loar v. Wilfong, 63 W. Va. 306; Lea v. Robeson, 78 Mass. (12 Gray) 280; Dillon v. Barnard, 21 Wal. 430; Land Co. v. Maxwell Land Co., 139
B-ut it is said the description of the property on which the lien is claimed is too indefinite. As we have seen the statute requires the description to be sufficiently accurate only for identification. The description of the property given in the lien is, “the railway of said corporation situate in the counties of Wetzel and Tyler and extending from the city of Sistersville' in Tyler county to the Town of Brooklyn in Wetzel county.” Because of the character of a railway traversing as it does in this ease the streets and roads of a town and county, the notoriety which is necessarily given such a work of internal improvement, the description in this lien is sufficiently accurate we think for identification.
Another point not presented or argued by counsel, though suggested in council, is that perhaps public policy would forbid the laying of a mechanic’s lien upon railways of this character. Mr. Boisot, section 204, discusses this subject, referring to the conflicting decisions. After a brief review of the cases he says in conclusion, that “the better reason would seem to show that mechanics’ liens may be enforced against street car companies under the laws giving liens on railroads.” Our statute does not in'speeific terms give such a lien on railroads, but we think the subject is covered in general terms by section 2, ch. 75, Code (1906), giving mechanics or materialmen, who furnish any labor or material “for constructing, altering repairing or removing a house, mill, manufactory, or other building, appurtenances, fixtures, bridge, or other structure, by virtue of a contract with the owner or his authorized agent, * ■ * * a lien to secure the payment of the same, upon such house or other, structure, and upon the interest of the owner in the lot of land on which the same may stand or to which it may be removed.” Is not a railway a structure upon land, and does not the owner have an interest in the land or lot on which
The question remains, what order of priority should be given appellants’ lien? In his report, not excepted to by appellants, the commissioner placed it, along with other mechanic liens, sixth in order of priority, after the bonded indebtedness. On exceptions by Belford and Guyton, and The Best Manufacturing Company, however, who held liens of the same character, and given the same order of priority, the court below properly corrected the commissioner’s report by giving them third place in the order of priority, immediately after the vendoris lien of E. A. Pollock. If appellants’ lien is valid, as we have decided it is, it is entitled to the same order of priority as those qf Bel-ford and Guyton and The. Best Manufacturing Company.
Appellants did not except to the report of the commissioner, however, and in a petition filed by them in the court below, for a rehearing of the final decree of February 24, 1908, they represented that their lien had been reported and given its proper and appropriate place in the order of priority. Why they did not except, and why in their petition, after said decree, they should express satisfaction with the order of priority given their lien is not apparent. It is only explainable on the theory of oversight, or inadvertence. The error in the report is pointed out for the first time in this CouTt, and we are urged to cor
It has been suggested in argument, however, that as the record shows appellants had not furnished all the material charged in their mechanic’s lien, prior to the date of the execution and recordation of the deed of trust securing the bonds, and prior to the delivery of some of said bonds, the lien is not good for the material furnished subsequently. It seems to be the settled law of this state that a mechanic’s lien attaches from the time the performance of the work and furnishing the material begin, and has priority over a deed of trust subsequently executed on the same property. Cushwa v. Imp. L. & B. Ass’n., 45 W. Va. 490; W. Va. Bldg. Co. v. Saucer, Id. 483; Charleston Lumber Co v. Brockmyer, 18 W. Va. 586; Bank v. Dashiell, 25 Grat. 616.
We are of opinion therefore that the court below erred in its decree of February 24, 1908, in sustaining exceptions to the report of the commissioner in favor of the appellants, and that this decree to this extent, as well as the subsequent decree of February 10, 1909, in so far as it may be regarded as affecting the rights of appellants to said lien, be reversed and annulled; and the decree which the circuit court should have entered will be entered here, overruling the said exception, and giving decree for the amount of said lien, to be paid third in the order of priority along with the liens of said Bedford and Guyton and the Best Manufacturing Company.
Affirmed in part, Reversed in part, and Rendered.