| Mont. | Sep 24, 1894
— Both parties to this action appeal, and assign certain alleged errors in the adjudication thereof. Those assigned on the part of defendants will be first considered.
The object of the action is to obtain judgment in favor of plaintiff against the Obelisk Mining and Concentrating Company, defendant, upon a demand in the sum of two thousand six hundred and two dollars and seventy-one cents, for building material and machinery alleged to have been purchased from plaintiff, and used by said company in the construction of a certain shaft-house, ore-liouse, office building, and a five-
The owners and lessors of said mining claim, Hight and Fairfield, appeared in defense, and opposed the granting of the relief demanded by plaintiff. They set up in defense the lease of the said premises executed between themselves and the Obelisk Mining and Concentrating Company, by the terms and conditions of which it was provided that all improvements and machinery placed on said premises by the lessee (with a few exceptions, which do not concern this consideration) were to become the property of the owners as soon as placed on said mine, and remain as part thereof; and by virtue of that provision of the lease and the provisions of the lien law exempting the owner’s interest in leased property from a lien for obligations incurred by a lessee while in possession thereof, the owners contend that no lien could attach to the said buildings and machinery put on said mining claim by the lessee to secure payment for the material used in the erection or equipment thereof.
Appellants Hight and Fairfield are supported by the statute and decisions in their contention, that the owner’s interest and estate in leased property is not subject to be charged with a lien for obligations incurred by the lessee, in and about his operations thereon. Such was the holding, upon careful consideration, in the case of Pelton v. Minah Con. Min. Co., 11 Mont. 281" court="Mont." date_filed="1891-12-07" href="https://app.midpage.ai/document/pelton-v-minah-consolidated-mining-co-6638088?utm_source=webapp" opinion_id="6638088">11 Mont. 281, and Block v. Murray, 12 Mont. 545" court="Mont." date_filed="1892-11-28" href="https://app.midpage.ai/document/block-v-murray-6638181?utm_source=webapp" opinion_id="6638181">12 Mont. 545. In these cases it was sought to fasten a lien on a leased mine to secure payment for labor employed by the lessee in working the same. In the
The statute of this state upon the subject of liens provides that “the entire land to the extent aforesaid upon which any such building, erection, or other improvement is situated, including as well that part of said land which is not covered with such building, erection, or other improvement, as that part thereof which is covered with the same, shall be subject to all liens created by this chapter, to the extent, and only to the extent, of all the right, title, and interest owned therein by the owner or proprietor of such building, erection, or other improvement, for whose immediate use or benefit the labor was done or things were furnished; and when the interest owned in such land by such owner or proprietor of such build
Under the provisions of this statute plaintiff is entitled to maintain its lien on improvements, such as buildings and machinery, placed on the leased premises by the lessee, to secure payment for the material or machinery furnished in the construction or equipment thereof, and is entitled to have its lien foreclosed thereon, and such improvements sold to satisfy such demand, with provision in favor of the purchaser to remove the things sold within the time provided by law. This lien attaches to matter added to the leased premises by the lessee, and goes no further, provision being made by law for removal thereof) so that the premises leased by the landlord may be returned to him unaffected by such lien. The statute so providing is paramount to the conditions of the lease, and the lien which the statute creates is not destroyed by a provision of the lease to the effect that the improvements by way of buildings or a mill for the reduction of ore shall inure to the lessor as soon as the same is placed on the premises. Such provisions of a lease, as well as provisions of other contracts, are subject to the provisions of the statute, and are presumed to have been made in contemplation thereof.
These appellants, Hight and Fairfield, further contend that the notice of plaintiff’s lien was not properly verified. The statute provides that the lien claimant shall, within forty-five days after furnishing the labor or material for which the lien is claimed, file with the county clerk and recorder of the county wherein the property is situate “ a just and true account of the amount due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit; but any error or mistake in the said account or description shall not affect the
State on Montana, \ County of Silver Bow. j SS‘
“ O. J. McConnell, being duly sworn, says that he is the assistant manager of the said Montana Lumber and Manufacturing Company; that he has heard read the above and foregoing notice and claim of lien, and knows the contents thereof; and that the statements and allegations therein contained are true, of affiant’s own knowledge.
“Montana Lumber and Manufacturing Company.
“By O. J. McConnell, Asst. Mgr.
“Subscribed and sworn to before me, this 19th day of April, A. d. 1892.
“Augustus T. Morgan, Notary Public.”
The point of objection to this verification is that McConnell appears to have subscribed the name of plaintiff corporation to this affidavit, and that the corporation was not acting and could not act as affiant therein. Notwithstanding this objection, the affidavit, as appears from its own terms, is the individual expression and affirmation of McConnell, out of his own mouth, and from his own personal knowledge, under oath administered by an officer duly qualified. It is his own personal utterance, verifying said account, under the sanction of his oath. We hold the verification sufficient.
Nor do we find sufficient force to vitiate the lien in the objection urged by appellants Hight and Fairfield that the notice of lien is insufficient, because it does not describe the party against whose property the lien was claimed. The notice of lien described said premises and the property on which the same are situate, and avers that the lumber, building material, and machinery were furnished by plaintiff to said defendant Obelisk company, and by it used in said improvements, and that said Obelisk company is the owner and reputed owner thereof. It is not proposed or sought in this action to make said lien a charge upon the property leased by Hight and Fair-
The assignment of error presented on behalf of plaintiff is that the trial court, by its ruling and decree, restricted plaintiff's lien to the precise material and machinery furnished by it, and used in the construction of said buildings and reduction plant. Plaintiff was entitled to a lien extending throughout the structure or mechanical plant erected or established on said property by the lessee, in the erection or construction of which the material and machinery furnished by plaintiff had been used. Such lien extends to the structure added to the leased premises by the lessee, and no further; and the boundary line between the rights of such lien claimant and the rights of the owner of the leased premises is found by ascertaining, not just how much lumber, or paint, or wall-paper, or nails, or how many particular “jigs and plungers and jig screens” were furnished by the lien claimant towards the buildings or reduction works on which the lien is sought to be applied, but by ascertaining the original condition of the leased premises when the lessee went into possession thereof, as respects the improvement on which the lien is claimed. If this were a case where some particular piece of machinery had been added to the mill, owned and leased along with the mine, it would, of course, be proper to restrict the lien for such machinery to that which was added by the lessee, and such ruling would be in conformity with the views here expressed, because it is here held that the lien for things furnished the lessee cannot extend to the interest or estate of the lessor; but there is no contention in this case that any of the improvements upon which plaintiff sought to have its lien foreclosed, or any part of the same, existed on said premises, and was owned by the lessors Hight and Fairfield when they leased said premises. There is no denial that the improvements described in plaintiff's lien were wholly added to the leased premises by the lessee; and, if that be true, the same are subject to plaintiff’s lien. The judgment should therefore be modified by decreeing the foreclosure of plaintiff’s lien upon the structures described therein, and shown to have been placed on said property entirely by the lessee.
Judgment modified.