84 P. 309 | Cal. Ct. App. | 1905
This action was brought by plaintiff to enforce a lien of materialmen who furnished the materials used in the construction of a house erected by a contractor, who constructed the same under a contract with one, not the owner, but who falsely represented himself as such. The trial court by its decree rendered judgment against the contractor and directed a sale of the building. From this decree and judgment, and an order denying a new trial, the owners of the real property appeal.
It is insisted by appellants upon this appeal that no lien can attach to a building permanently resting upon land, unless some interest in the real property is vested in the person who caused the superstructure to be erected; and that a decree directing the sale of the building in proceeding to foreclose a mechanic's lien is unauthorized. Section 15, article 20 of our state constitution provides: "Mechanics, materialmen . . . shall have a lien upon the property upon which they have bestowed labor or furnished material for the value," etc. Title IV of the Code of Civil Procedure, which comprises the necessary legislation to carry into effect this constitutional right, provides that the lien shall be upon the property upon which they have bestowed labor and furnished materials; and by section 1185 of such title it is provided that "the land upon which any building . . . is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof . . . is also subject to the lien, if at the commencement of the work, or the furnishing of the materials for the same, the land belonged to the person who caused said building to be constructed." *508
The supreme court of this state in Humboldt Lumber Co. v.Crisp,
It is unnecessary upon this appeal to notice the questions raised as to the validity of the deficiency judgment against the contractor. This judgment does not purport to be against appellants. The only decree affecting appellants is as against the building, and in the absence of any showing that its removal would in anywise injure the property of appellants, they will be taken as having suffered no injury by reason of the sale and removal. If, upon the other hand, they elect to pay the judgment and retain the building, to which up to the present time they have contributed nothing, such election would no doubt be based upon the equivalent they received for the outlay. In no event, however, does the amount of the judgment affect their present interests.
We see no prejudicial error in the record, and the judgment and order are affirmed.
Gray, P. J., and Smith, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 19, 1906. *509