137 S.E. 889 | W. Va. | 1927
The decree appealed from, entered August 5, 1926, dismissed the bill on the ground that the mechanic's lien sought to be enforced was not a lien upon the property of defendants, because neither they, nor either of them, had legal or equitable title to the land at the time the mechanic's lien was attempted to be perfected, but that the title thereto was in another person not a party to the cause when the lien was filed. The bill was dismissed without prejudice to any proper suit.
The original, amended and supplemental bills set up and exhibited a written contract between plaintiff Mahan and defendant E. J. Bitting, dated the __________ day of July, 1920, whereby the former was to construct a dwelling house for the latter on about one acre of ground on Hood Hill near the Town of Ripley for the sum of $3,770.00, according to plans and specifications, and aver that plaintiff constructed the dwelling thereunder with changes in the plans and specifications ordered and directed by defendant E. J. Bitting, and completed it about February 1, 1921, when there was due him $2,087.86, subject to a small undetermined credit. It is charged in the original bill that defendants without the knowledge or consent of plaintiff took possession of the building and moved into it as a residence; that E. J. Bitting represented himself to be the owner of the acre lot on which the dwelling was erected, and styled himself as such owner in the written contract, but that for some reason he has not had his deed recorded, and that plaintiff has been informed that the other defendant, Irene Bitting, the wife of E. J. Bitting is claiming some interest in the lot, and she is made a party in *451 order that she may protect her interest, if any. The bill charges that the plaintiff's lien for work and materials was perfected in the manner and within the time prescribed by law, by filing and recording the proper notice in the county clerk's office, a copy of which notice is exhibited; and prays for the enforcement of his lien by sale of the house and lot, and that E. J. Bitting be required to file his deed, or copy thereof, to the lot, and that Irene Bitting be required to answer under oath stating what interest, if any, she has in the lot; and for general relief.
The joint and separate answer admits the contract, but charges that the house was not constructed as agreed, and that on February 5, 1921, E. J. Bitting notified plaintiff to complete the house according to contract, or it would be done at his expense, whereupon plaintiff claimed that he had completed the work, and attempted to file a mechanic's lien. The answer says that by reason of bad construction and for other reasons (not here necessary to be set out) the sum due from E. J. Bitting to plaintiff is $837.00, which is tendered in cash with the answer.
The answer says that, "defendant Irene Bitting is the owner in fee of the lot upon which said bungalow stands, and that she has a deed for the same but has not recorded the same." The answer denies that the building is completed and denies that plaintiff has any right, or has any lien upon the property. Damages for breach of the building contract, amounting to $2,000.00, are claimed by defendants, and they aver that all plaintiff is entitled to recover is the $837.00 tendered.
A vast amount of proof was taken which relates to the performance of the contract in the erection of the building, the material used, the charges made, the delays, and by whom occasioned, the occupancy of the same by defendants, the various breaches of the contract and resultant damages to defendant, and the like; all going to prove the amount, if anything of plaintiff's claim. In response to the demand of the bill that defendant E. J. Bitting produce his deed to the lot, he, in the course of his deposition, filed a copy of the deed *452 to Irene Bitting set up in the answer, executed by J. K. Hood and wife, bearing date on July 16, 1920, and acknowledged before a notary public on Dec. 20, 1921, the consideration being $1.00 and love and affection, conveying the lot by metes and bounds, together with right of way to the public road.
After the depositions were taken, plaintiff amended his bill, stating that the copy of the deed from the Hoods to Irene had been so filed with E. J. Bitting's deposition, and charging, "that said deed was not delivered until after it was so acknowledged and long after plaintiff had completed the building of said house and defendants had taken possession of said building and was living in the same as their home," and that title to said lot was now vested in Irene Bitting. The amended bill further charges that when E. J. Bitting made the building contract he was acting as the agent of his wife, and that she knew of and consented to the contract; that she lived near by with her father, J. K. Hood, and was frequently present at the building when it was being constructed, and gave instructions concerning the work, and moved into the house with her husband upon its completion, and thereby ratified the contract. The amended bill further says that plaintiff did not know in whom the legal title was vested at the time of the institution of the suit, and not until a year after the completion of the house, and that the amended bill was filed for the purpose of bringing the true title before the court, and of showing the agency of E. J. Bitting in making the contract. To this amended bill defendants demurred on the ground that it shows that neither of defendants had legal or equitable title to the lot at the time the alleged lien was attempted to be taken or preserved, but, on the contrary, shows that J. K. Hood or his wife owned the land; and answered, admitting the charge in the amended bill that Irene Bitting did not have title to the lot until the deed was executed and delivered by the Hoods on December 20, 1921, nearly a year after the alleged mechanic's lien was attempted to be taken and preserved; and denying that E. J. Bitting was the agent for Irene in making the building contract. The answer says that while Irene was sometimes present at the building, the *453 real owner of the property, Ida L. Hood, was also frequently present and gave suggestions as to the work; and Irene says in the answer that she had neither legal nor equitable title to the lot at the time contract was made, nor until nearly a year after the alleged completion of the house, and that plaintiff well knew from the public records that Ida L. Hood owned the land. The answer is sworn to. It appears from the evidence that the first payment made by E. J. Bitting a few days after the date of the contract, amounting to $1,000.00, was by check from J. K. Hood.
Who owned the lot at the time the contract was made and the building completed? The legal title appears to have been in Ida L. Hood. The bill does not allege nor is there any attempt to show that either Irene or E. J. Bitting had equitable title to the land at the time the work was done. It is not even suggested in pleading or evidence that there was any agreement or understanding between the Hoods and the Bittings that the lot was Irene's, or that she should eventually have title to it. The amended bill charges that she did not get title until the deed was executed and delivered to her, Dec. 20, 1921, long after the lien against her was attempted to be taken and preserved. If the property belonged to Irene at the time the house was built, or she had an equitable interest therein, it might be that we could well find from the evidence that E. J. Bitting acted as agent for his wife, under the principles announced in Milligan v. Alexander,
Plaintiff contends, however, that he having preserved his lien by filing notice thereof against E. J. and Irene Bitting in the county clerk's office, it immediately attached to the lot when the title thereto was afterwards transferred to Irene and she became the owner, under analogy to the principle applicable where a person not having title to land deeds it to another and afterwards obtains title thereto, the title afterwards so obtained passes by operation of law to his prior grantee; or where judgment is obtained and recorded the lien thereof immediately attaches to any interest in land afterwards obtained by the judgment debtor within the life of the *455
judgment lien. A mechanic's lien is purely a creature of the statute, and the property to which it attaches is held as security for the debt. If there be no privity of contract between the lienor and the owner of the land it is error to take personal decree against the owner. Augir v. Warder et al.,
Under the statute the mechanic's or materialman's lienattaches when the labor has begun or the materials shall havebegun to be furnished, and takes preference over all other subsequent liens created by deed of trust, or otherwise. Sec. 5, Chap. 75, Code 1923. See Cushwa v. B. L. Association,
Affirmed.