McFeron v. Doyens

116 P. 1063 | Or. | 1911

Lead Opinion

Opinion by

Mr. Chief Justice Eakin.

1. Defendant contends that the notices filed are insufficient to create a lien, in that they are not in the form of notices, do not expressly declare that liens are claimed, and that they do not contain a sufficient description of the property for identification. The notices of lien are in the form of affidavits stating the facts, one being headed, “Lien. R. T. McFeron ag. John Doyens,” and the other is in the same form. The statute under which the lien is claimed (Section 7420, L. O. L.) specifies no form of notice. It only requires that the claimant shall “file with the county clerk of the county * * a claim containing a true statement of his demand, after deducting all just credits and offsets, with the name of the owner, or reputed owner, if known, and also the name of the person by whom he was employed * * and also a description of the property to be charged with said lien, sufficient for identification.” The lien notices in this case contain a statement of facts as to each of these requirements. They were filed and recorded in the mechanic’s lien record and within the time required. The description of the property to be charged with the lien as described in the notice is “a certain sawmill upon the property of R. M. Seism and Claybourn Steel about four miles southwest of Mt. Angel, Oregon, and reputed to be owned by John Doyens.” As between plaintiff and defendant John Doyens this is a sufficient description to identify it. As said in Kezartee v. Marks, 15 Or. 529 (16 Pac. 407), if there is enough in the description of the locality and other peculiarities of the building to identify it — to point it out with reasonable certainty — the statutory requisition is complied with.

2. In the absence of subsequent lienholders or purchasers, the description is sufficient, and will enable one familiar with the location to point out the property.

3. Defendant seeks to establish that the mill is a portable one. Whether it is or not we deem immaterial, as plaintiff does not ask relief against the land. The statute gives a lien upon any building, machinery, or structure, and it is not essential that it be attached to or made a part of the realty. It is held in Kezartee v. Marks, 15 Or. 529 (16 Pac. 407) that, where the title to the structure and the title to the land are in different persons and the land is not described, the notice specifying the structure, the lien may attach to it but not to the land.

4. But even if the mill had been what is known as a portable mill yet when erected upon the land and imbedded in brick and mortar foundation, it may become a fixture. Washburn v. Inter-Mountain Min. Co., 56 Or. 578 (109 Pac. 383).

5. Again, defendant contends that, as the assignment by Lee McFeron of his claim and lien was verbal, it is insufficient to transfer the title to the lien to plaintiff. Although the courts of some states hold that the lien, being an interest in real estate, can only be transferred by a writing, it is settled in this State that a mortgage on real estate is only an incident of the debt, and that the transfer of the debt carries with it the security. Roberts v. Sutherlin, 4 Or. 219; Barringer v. Loder, 47 Or. 223, 229 (81 Pac. 778); Boisot, Mechanics’ Liens, § 12, states that, as in the case of a mortgage so with a mechanic’s lien, an assignment of the debt or account secured operates as an assignment of the lien. And it is also the rule in this State that any debt or claim may be transferred by parol which operates as an equitable assignment and transfers all the interest of the assignor. Moore v. Miller, 6 Or. 254 (25 Am. Rep. 518); First Nat. Bank v. McCullough, 50 Or. 508, 514 (93 Pac. 366: 17 L. R. A. [N. S.] 1105: 126 Am. St. Rep. 758); Trueblood v. Shellhouse, 19 Ind. App. 91, 95 (49 N. E. 47). The assignment by parol was sufficient.

[116 Pac. 1065.]

6. The evidence is not specific as to whether the removal and erection of the mill on the Seism and Steel place was done for L. M. McFeron or John Doyens, but the allegation is that it was for Doyens, and the testimony for plaintiff tends to sustain that allegation. McFeron did not purchase the mill until February 15, 1909, at which time it had been moved and rebuilt to such an extent that it could be used in cutting lumber for the erection of the mill building. It is described in the contract as the mill situated on the Seism and Steel place, and it appears that Doyens made the payments to plaintiff and Lee McFeron that are credited on the claim, and the conclusion is justified that the work was done for defendant Doyens. L. M. McFeron being in charge of the work he is by statute made the agent of Doyens which connects the laborers with the owner of the property by contract.

The other errors assigned are without merit. The decree is affirmed. Affirmed.

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Rehearing

Decided August 1, 1911.

On Petition for Rehearing.

In the petition for a rehearing, counsel contend that the court is in error in holding that L. M. McFeron purchased the mill on February 15, 1909, but the only evidence of such purchase was the written contract of sale of that date in which Doyens retained the title of the mill until the price should be paid. From the evidence it appears that a sale was contemplated as early as November, 1908, but there is no evidence that the terms of sale were agreed upon; and the statement of Doyens that the delivery of the machinery to the McFerons was in November did not necessarily mean, as counsel asserts, that the delivery was under the contract of sale, as it was not sold to the McFerons but to L. M. McFeron. Defendant’s counsel asked Doyens to explain as to the sale of the mill, but the question was abandoned when objected to. L. M. McFeron testifies that Doyens was the owner of the mill and that Doyens and he were putting up the mill. When asked if he had bought the mill he answered, “Well, in a way,” all tending to show that the sale was not consummated until the time the contract was executed. The burden of the petition is that the plaintiff and Lee McFeron have included in the lien claim an item not lienable, viz., for work done in the manufacture of lumber, and this refers to $37 worth of lumber sold by Lee McFeron on February 26, 1909.

The testimony tends to show that in erecting the mill it was placed on a foundation, and the lumber to set it up and to house it was sawed as needed for that purpose; that they would saw for an hour or two in the morning and then build for the remainder of the day. The amount of lumber sawed is not shown by the record to exceed 6,000 feet. Counsel refers to a laborer’s lien notice on 10,000 feet of lumber in the yard, as evidence that that amount was sawed for market. But the notice of lien is not evidence that the lumber was there. Such an exhibit is not in the record nor the offer of it shown in the evidence. Steel, who furnished the logs cut, was a witness, and testifies that L. M. McFeron settled for the logs, and if more than 6,000 feet were sawed he could have established it, but he says nothing about it.

It is testified by Lee McFeron thát the work done upon the lumber sold in February, 1909, is not included in the lien, but if it was the amount of the work of these two men in sawing, it would be but a fraction of a day, and too small to defeat the lien. As in Cochran v. Baker, 34 Or. 555 (52 Pac. 520: 56 Pac. 641), the non-lienable items were too small to have been included for the purpose of gaining an advantage and should not defeat the lien.

The petition is denied.

Affirmed : Kehearing Denied.