5 Alaska 300 | D. Alaska | 1915
In the first place, the court calls attention to the second paragraph of the note to title 12, page 276, of the Compiled Laws of Alaska:
“The safe and .proper rule of construction of mechanic’s lien statutes is that, while the remedial portions of these statutes should be liberally construed, with a view to avoid defeating the purpose of the statute, yet those parts upon which the right to the existence of a lien depend, being in derogation of the common law, should be strictly construed.” Morris v. Marsh, 3 Alaska, 144.
Chapter 28, title 12, of the Compiled Laws of Alaska definitely sets forth what the claimant must do in order that he may have a lien. No liberal construction is permitted to be applied to the mandatory requirement of the statute that the
The evidence shows that on the 20th day of May, 1913, the plaintiff, Irvine, and five of the other claimants, subscribed and swore to their respective claims for mechanics' liens; that the seventh claimant subscribed and swore to' his claim for mechanic’s lien on the 28th day of May, 1913, and that it was filed for record in the office of the recorder for the Fairbanks recording precinct on the same date. Irvine’s claim was filed for record on the 7th of June, and the other claims were filed between the 27th of May and the 7th of June.
No lien exists until the claim of lien is filed as prescribed by statute. The provisions of the statute permit of no other construction. The statute’plainly says to1 the claimant that, if a special security is desired, then the claimant must fully comply with the special provisions of the" statute designed to afford such special security.
The evidence shows that all the claimants who assigned to Irvine, with the exception of one King, made such assignments prior to the time of filing their several claims with the recorder. The claimant King, on cross-examination, testified that he had made his assignment the day prior to May --, 1915, the date on which he testified in the trial of this case.
Plaintiff’s Exhibit I, introduced in evidence, reáds as follows :
“For value received, I hereby assign and sell to Jack Irvine my claim against Angus McDougall for work and labor performed upon the Pioneer quartz mining claim at the bead of Fairbanks creek, and also any and all rights which I may have by virtue of having filed a mechanic’s lien for said amount upon said claim.
“James Fox.
• “Donald Hayes.
“John Wensel.
“John H. Sully.
“Henry Berks.
“Tom King.”
The evidence shows that at the time this instrument, which is not dated, was signed, the respective claimants, with the exception of King, had not filed their respective claims of lien, and therefore their liens as such were not assigned.
In each cause of action, except the first, in plaintiff’s complaint, it is alleged:
*303 “That subsequent to the filing of said lien said (claimant), for a valuable consideration, assigned said claim against said MeDougall, and all rights by virtue of having filed said lien, to the plaintiff, who is now the owner and holder thereof.”
In the absence of any statute to the contrary, the assignment of the claim before the perfection of lien destroys the right to lien. Noll v. Kenneally, 37 Neb. 879, 56 N. W. 722; Ogden v. Alexander, 140 N. Y. 356, 35 N. E. 638; Dexter, Horton & Co. v. Sparkman, 2 Wash. 165, 25 Pac. 1070.
See, also, Arndt v. Manger et al., No. 1858, Records of this Court (unreported).
It is stated in Boisot on Mechanics’ Eiens, §■ 10, as follows:
“In several of the states the statute expressly declares that mechanics’ liens are assignable. Where this is the case, the question is, of course, at rest, so far as that state is concerned. But where the statute says nothing on that subject, the question of assignability depends mainly upon the point whether or not the lien has been perfected by filing the claim before the assignment is made. It nearly all the states the person claiming the lien is obliged, in order to perfect it, to file a claim, verified by affidavit, showing, among other things, the amount that is due to him'for labor or materials furnished by him. If he has assigned the account before he filed his claim, he cannot truthfully swear that there is anything due him, because the debt is then due, not to him, but to his assignee. But his assignee cannot truthfully swear that he has either done work or furnished materials, and it is only to those who furnish either labor or materials, or both, that a lien is given. It follows, logically, from this reasoning, that a mechanic’s lien, before being perfected by filing a claim, is not assignable; and a majority of the decisions so hold.”
The mere right to a lien is not assignable. 27 Cyc. 255, 256.
Regarding the lien of Irvine, the plaintiff herein, the court finds from the evidence that he has a valid lien on the property described, as alleged in the first cause of action, and that his lien is superior to the attachment of the defendant Healey.
In accordance with the view herein expressed, findings of fact, conclusions of law, judgment, and decree may be prepared and submitted.