142 P. 785 | Or. | 1914
delivered the opinion of the court.
This is a suit in equity to foreclose 27 separate claims of lien upon a quartz mine, comprising the north half of the southwest quarter and the south half of the northwest quarter, section 16, township 36 south, range 4 west, of the Willamette meridian, togéther with the mining apparatus, equipment, quartz-mill, concentrator, compressor, air drills, electric machinery, and other equipment for the working of the mine ■and reduction of ores as well as ditches, ditch rights and water rights, used for mining purposes and con
The contentions of the defendants, on the appeal, are substantially as follows:
. First, that the liens were assigned to the plaintiff, Loud, who was also one of the lien claimants, prior to the time when the liens were perfected by filing the notices thereof with the county clerk.
Second, that three of the notices of lien were verified by George Loud in the absence of the lien claimants.
Third, it is claimed that there is no proof as to various of the liens, that the same have not been paid.
Fourth, the defendants assert that the reasonable value of the labor or of the supplies and its beneficial value to the property is the basis of the right of lien, and not the agreed wages or the agreed purchase price of the materials.
In Alderson v. Lee, 52 Or. 98 (96 Pac. 234), the court says, inter alia:
“If, then, as a matter of law, the assignments were fully executed before record thereof, the attempted liens come within the rule and are unavailable; and plaintiff would receive choses in action only with respect to which his remedy would be in law, and not in equity.”
In this case, if the assignments to the plaintiff were fully executed before the claims for the liens were made out and filed for record, the plaintiff took noth
The written assignment that the parties executed (omitting the signatures) is as follows:
“We, the undersigned, claimants against the Enterprise Mine, situated near Woodville, in Jackson County, Oregon, having filed our respective liens with*160 the cownty clerh of said county, do hereby respectively assign said liens, as well as the claims and demands therein set forth, unto'George Loud, for the purpose of collection, hereby authorizing and empowering the said George Loud, in his own name, to maintain any necessary suits or proceedings for the recovery of said sums of money, as well as the foreclosure of said liens, and authorizing him to incur expenses incident thereto. In witness whereof, we have hereunto set our hands, this 25th day of July, 1911.”
This assignment recites that the parties executing it had filed their respective liens with the county clerk of Jackson County. It was recorded on September 9, 1911.
H. D. Norton, attorney for the plaintiff, testified that he wrote all of the claims for the liens, and went to Jacksonville with the plaintiff, when they were filed with the county clerk for record. He testifies that he also wrote said assignment of said liens, and that the assignment was written and executed after the claims of liens had been filed for record with the county clerk. He says that he wrote it and sent it to the plaintiff to get the parties to sign it, and the plaintiff returned it to him signed by all the parties except Mr. Wade, and that Wade signed it in his office, and he then sent the assignment to the clerk at Jacksonville to be recorded. Mr. Norton must have known whether this document was written or executed before the liens were recorded, or not. He testifies positively that it was written and executed after the claims for lien had been filed for record. The assignment was filed for record September 9,1911. Each of the claims for lien, except three, is signed and sworn to by the claimant, without any statement to indicate that the account upon which it is based had been assigned to anyone. The plaintiff verified three of the claims for liens for
In the case of Alderson v. Lee, 52 Or. 98 (96 Pac. 234), the fact was that, when the claims for liens were presented to the clerk to be filed for record, there was indorsed on each claim an assignment thereof, signed by the claimant. Commenting on this fact, the court in that case, says:
“To constitute a valid assignment, when in writing, it must be delivered to the assignee. A mere indorsement on the instrument assigned is insufficient (4 Cyc. 41), and the transmission and time of delivery may be shown by parol. * * Explanatory testimony was adduced at the trial, showing that, while the signing of the lien notices, and assignments indorsed thereon, by the respective parties were simultaneous, it was understood and agreed that the liens should not be delivered to the plaintiff until after they were placed of record, and that they were not in fact delivered to him until recorded. This being the status of the transfer of the liens, the assignment became effective as of the date of the delivery, prior to which the liens had attached, and were accordingly assignable, and, having been regularly assigned, were subject to a foreclosure by plaintiff as assignee thereof.”
While there are some circumstances tending to show that the assignment to the plaintiff was made before the claims for liens were recorded, yet we find that the preponderance of the evidence shows that the assignment was written and executed after the liens were perfected by being recorded.
The plaintiff verified the claim of D. N. Quinn. The verification is as follows:
“State of Oregon,
County of Jackson, — ss.
“I, O. Loud, being first duly sworn, on oath, depose and say: That I caused the foregoing notice of lien to be prepared at the instance and request of D. N. Quinn, the above-named claimant; that I have personal knowledge of all the facts set forth in said lien, and know the facts' therein set forth to be true, and that the statement of the claimant is true and correct, and the sums therein claimed are due the claimant as in said lien stated, over and above all just setoffs and counterclaims.”
Said verification was subscribed and sworn to before the county clerk of Jackson County. We think that said verification is sufficient. The other verifications made by the plaintiff are in substantially the same form, and are sufficient.
There is no evidence that the notices referred to supra, were posted as required by Section 7444, L. O. L., and hence the said mining property was subject to liens for labor done for and supplies furnished to Walter S. Brown, the person who was operating or working said mine, under said contract with the owner thereof.
We have read and considered the evidence and the arguments and the briefs submitted by the parties, but we find no error in the decree of the court below.
The decree of the court below is therefore affirmed.
Affirmed, Rehearing Denied.