26 Colo. App. 483 | Colo. Ct. App. | 1914
delivered the opinion of the court.
Two- principal questions are argued by plaintiff in error, which he insists are sufficient tO' reverse the judgment: (1) That the statement of lien does not contain a description of the property to be charged therewith “sufficient to identify the same;” (2) that the written contract of sale was, in legal effect, a mortgage, and being of record before the materials were furnished by the lien claimant, constitutes a Hen prior and superior to’ that'of the defendant in error.
1. The statute provides that the lien statement filed for record shall contain, inter alia, “a description of the property to be charged with the lien, sufficient to identify,the samé.”
A false description does not vitiate an instrument, or malee it inoperative, provided the thing intended is otherwise sufficiently described. Falsa demonstrate non nocet, cum de corpore constat. — Broom’s Legal Maxims, p. 470; Murray v. Hobson, 10 Colo. 66, 13 Pac. 921. Both reason and authority support us in holding that a false “call” so obvious as that .found in-this instance may and should be rejected. There is no' pretense that plaintiff in error was misled or in any manner injured by the erroneous description. It does not appear that either he or Penna and McPherson were the owners of any other real estate in that vicinity to which the lien statement
Plaintiff in error also- contends that the description is wholly insufficient because it does not attempt toi describe the buildings into which the material furnished was incorporated. It cannot be doubted that it is the intention of the lien act to- give a primary lien on the structure for which materials are furnished or on which labor has been bestowed, and that such lien is only extended to' cover so much of the ¡lands on which the building, structure or improvement has been made as may be necessary for the convenient use and occupation of the building, in order to- effectuate the primary lien, and for that reason the contention of counsel, that a statement whidh does not contain some description óf the buildings is defective, is correct. — Warren v. Quade, 3 Wash. 750, 29 Pac. 827. But it is often, and, we think, generally, held that unless the statute requires the building, as distinguished from the land, to- be described, or the building is to be removed after sale, a description of the land will include the buildings on it, and the lien will attach to- both, although the buildings are not described. — 27 Cyc. 163, and cases cited. A description of the buildings would very materially aid in the identification of the property intended to- be subjected to the lien, and while it should have been included, we cannot say that the omission is fatal. Moreover, the lien statute (section 4043 R. S. 1908) says, “The provisions of this act shall receive a- liberal construction -in all cases.” Keeping in mind this requirement, and! in view of the equities disclosed by the evidence, we think the lien claimed should not fail because of the clerical error noted.
The questions presented by counsel for plaintiff in error are not free from difficulty. If the circumstances of the case called for strict 'construction of the act, or a different application of the rules, in order to- do equity, his contention might prevail; but upon the showing made, we are satisfied that the judgment should be affirmed. Affirmed.