Johnson v. Erickson, 185 P. 1116

Johnson v. Erickson

185 P. 1116

| Mont. | 1919

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

Plaintiff having furnished materials to Erickson and Simons for the construction of a store building in Fairview, brought this action to foreclose a mechanic’s lien. All the defendants, except the Ailing Mercantile & Lumber Company, defaulted, *553and this company, a judgment creditor of Erickson and Simons, contested the validity of plaintiff’s lien. The cause was tried upon an agreed statement of facts, from which the court deduced the conclusion that plaintiff was entitled to a money judgment only, and refused to decree a foreclosure of the lien. From that judgment and from two certain orders made after judgment, plaintiff appealed.

The lien describes the property to be charged, as that certain frame store building erected upon lot 23, block 8, in the L. E. Newlon Second Addition to the town of Fairview. The agreed statement discloses that there are four additions to Fairview, viz.: (1) L. E. Newlon Addition; (2) Revised L. E. Newlon Addition; (3) L. E. Newlon Second Addition; (4) Revised L. E. Newlon Second Addition, and that the materials furnished by plaintiff were used in the construction of a store building upon lot 23, block 8, Revised L. E. Newlon Addition.

1. Does the misdescription of the land, in the lien, vitiate the lien ? By section 7290, Revised Codes, the lien is impressed [1, 2] upon the building or other improvement primarily, and therefore the property to be identified by the description in the lien is the building or other improvement, as the case may be. (Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 52, 144 Pac. 722.) The authorities are agreed that the building, as in this case, may be identified by reference to the land upon which it is situated (18 R. C. L. 936), and, if it is urban property, a reference to the lot and block as shown on the official plat is usually sufficient.

Section 7291, Revised Codes, provides that the lien must contain “a correct description of the property to be charged with such lien * * * , but any • error or mistake in the * * * description does not affect the validity of the lien if the property can be identified by the description.” The same [3] section requires that the lien must be filed in the office of the county clerk of the county in which the property is situated, and section 7292 requires the clerk to make an abstract of the lien, in a book by him to be kept for that purpose and prop*554eiiy indexed, containing the date of filing, the name of the lien claimant, the amount of the lien, the name of thé person against whose property the lien is filed, and the description of the property.

The'purpose of requiring the lien to be filed and an abstract thereof made of record is to impart notice to the owner and to subsequent purchasers or lienholders; and in order that the purpose may be served, it is necessary that the description in the lien be sufficient to apprise interested parties just what property is sought to be charged.

It is apparent at once that in so far as plaintiff relied upon the description of the land to identify the building he failed. Land described as lying in the L. E. Newlon Second Addition could not identify a building situated upon land lying in the Revised L. E. Newlon Addition. A prospective 'purchaser of the building and of the interest owned by Erickson and Simons in lot 23, block 8, Revised L. E. Newlon Addition, would never be apprised by the lien that there was an encumbrance upon it. An abstract of the title to lot 23, block 8, Revised L. E. Newlon Addition, would not disclose the fact that a lien was claimed upon the property or the improvements. The validity of the lien must be tested by the description contained [4] in it. If there is merely an ambiguity in the description, it may be explained and the property identified by oral evidence; but in this connection the language employed by this court in Goodrich Lumber Co. v. Davie, 13 Mont. 76, 81, 32 Pac. 282, 283, is peculiarly applicable here. It was there said: “The description of the ground is perfectly definite and certain. The only difficulty is that it was a wholly wrong [5] description.” But the description of the ground is not the only means of identifying the building. It may be identified sufficiently by such a description of the building itself as will enable a person familiar with the locality to point it out as the only one corresponding with the description contained in the lien. (Hughes v. Torgerson, 96 Ala. 346, 38 Am. St. Rep. 105, 16 L. R. A. 600, 11 South. 209.) This is the meaning of *555section 7291 above, and numerous instances might be cited to illustrate the principle, but the following cases will suffice: Western Iron Works v. Montana P. & P. Co., 30 Mont. 550, 556, 77 Pac. 413; Scholes v. Hughes, 77 Tex. 482, 14 S. W. 148; McHugh v. Slack, 11 Wash. 370, 39 Pac. 674; Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22; Rockel on Mechanics’ Liens, sec. 105.

The authorities hold, and our statute (see. 7291 above) in [6] effect declares, that if' by rejecting what is erroneous in the description contained in the lien, enough remains to identify the particular property sought to- be charged, the lien will be upheld. (Dean v. Stewart, 49 Mont. 506, 515, 143 Pac. 966.) If, on the other hand, it is impossible to identify the property by the description contained in the lien, the lien will be held to be invalid. (Ivanhoff v. Teale, 47 Mont. 115, 118, 130 Pac. 972.)

Eliminating from the description contained in this lien the [7] words, “L. E. Newlon Second Addition,” and we have the property described as that certain frame store building erected upon lot 23, block 8, in the town site of Fairview. The record does not disclose how many blocks, each numbered 8, there are in Fairview; how many additions there are other than the Newlon Additions, or whether there was an original plat of the town site. Presumably there was, as each of the Newlon plats is referred to as the plat of an addition. Neither does the record disclose that the building upon which plaintiff would impress a lien is the only building in Fairview which answers to the description “that certain frame store building.” If this lien had been ordered foreclosed and the property sold, the officer attempting to execute the process could not have found the property from the description contained in the lien, and for this reason it must be held to be insufficient.

2. After the trial court had indicated its views, plaintiff [8] moved to amend his complaint. Without expressly passing upon the motion, the court ordered judgment entered. Plaintiff then moved to have the judgment set aside upon the ground that it had been entered prematurely — before the mo*556tion to amend was disposed of. This motion was overruled, as was the motion to amend. The order for judgment operated, in effect, to deny the motion to amend, and the judgment was not prematurely entered.

Furthermore, the motion to .amend was altogether without [8] merit. As observed heretofore, the lien must stand or fall by the description contained in it. The time for filing a lien had long since expired, and, in the absence of a statute authorizing the lien to be amended, nothing that plaintiff could incorporate in his complaint by way of amendment could change the fact that he had failed to properly describe the property in his lien. (27 Cyc. 206, 207.)

The judgment and orders are affirmed.

'Affirmed.

Mr. Chibe Justice Brantly and Associate Justices TIurly and Cooper concur.