55 Cal. 159 | Cal. | 1880
Defendant Wood being a tenant of his codefendant—the Southern District Agricultural Society—and in possession of the fair grounds and park of the society, which were located on the N. W. £ of section 7, township 2 south, range 12 west, S. B. M., in Los Angeles County, caused to be constructed thereon a dancing-hall, swings, and seats, and the lumber and materials which he used in their construction he procured from the plaintiffs. On the 22nd of May, 1878, the lumber and materials were all furnished. Wood failed to pay for them; and on the 20th of June, 1878, plaintiffs filed a mechanic’s lien on •the land and improvements, or “ such interest as the defendant Wood had in them on the 1st day of April, 1868.” To foreclose this lien, plaintiffs brought the action in hand against Wood and the society, in which they sought to make the society chargeable with the lien, upon the ground that it knew of the construction of the “ buildings,” and did not give notice, according to § 1192 of the Code of Civil Procedure, that it would not be responsible for their construction.
On the trial of the case the Court found, in substance, that the society was the owner of the land; that Wood was in possession of it as a lessee and tenant of the society: that he caused to be constructed upon the land the dance-house, swings, and scats, for his own use and convenience; that he owed the plaintiffs a balance of $384.50 for the lumber and materials which were furnished and used in their construction, and that the owner of the land had no knowledge or notice of their construction. This last finding of fact is complained of as erroneous, on the ground that it is against the uncontradicted evidence in the case.
The record discloses that there was no conflict of evidence upon the subject, and that the whole evidence amounted to this, viz.: that on one occasion one of the directors of the society was present on the land while Wood was erecting the buildings.
So, where a defective deed had been recorded, purporting to convey certain land, and one of the directors of a corporation which had acquired an equity of redemption in the premises, not acting as agent of the corporation, and having no manage
Besides, it is doubtful whether all of the so-called buildings, consisting, as already stated, of a dancing-hall, swings, and seats, are fixtures within the meaning of the Mechanics’ Lien law, for which the society would be chargeable even with notice. The dancing-hall was a covered structure resting on sills, partly weather-boarded around the sides, and- without doors or windows. Each of the swings consisted of two upright posts set in the ground, and braced, and were connected at the top by a cross-piece with rings in it. Whether the “ seats ” were chairs, benches, stools, or the like, does not appear from the evidence; nor does it appear how much of the lumber and materials were used in the construction of any of them, nor is it designated in the asserted lien itself how much of the amount due to the plaintiffs for lumber and materials which they furnished was chargeable against any one of the improvements, as is required by § 1188 of the Mechanics’ Lien law. It was, therefore, impossible for the Court below to find the amount due to the plaintiffs on each of the improvements, so as to give a judgment of lien upon any one of them as distinct from the others.
Moreover, whatever may be said of the dancing-hall, we think that neither swings nor seats are buildings or structures, within the intent and meaning of §§ 1183 and 1192 of the Code of Civil Procedure, for which a lien may be filed, and the owner of land, who may acquiesce in their construction, be made liable. So far as the defendant, the Agricultural Society, is concerned,
The decision and judgment that the plaintiffs were entitled to a vendor’s lien upon the improvements, were entirely outside of any issues made in the case, and were against law.
The judgment in favor of the defendant, the Agricultural Society, is affirmed, and the judgment in favor of the plaintiffs against defendant Wood is reversed, with instructions to the Court below to enter up judgment upon the finding in favor of plaintiffs for a lion upon such interest as defendant Wood may have had in the land on the 1st day of April, 187 8.
McKinstry, J., and Ross, J., concurred.