160 P. 135 | Or. | 1916
delivered the opinion of the court.
The Strowbridge Estate in its answer to the lien claimants maintains that its property is not subject to
“(1) The lien claimants knew of the provisions of the lease exempting the property from liens. (2) Owner’s property is exempted from liens by the notices of nonliability and the knowledge conveyed thereby to lien claimants prior to the making^ of the improvements. (3) Lien elaimánts waived their right to liens by express contract to that effect. (4) Notices of liens were not filed within 30 days after the completion of the work.”
The reasonable value of the work and the right to liens for part of the price agreed to be taken in stock is also in issue. It is stated in the brief of the learned counsel for the defendant Strowbridge Estate as follows:
“The legal effect of the lease in this case is to make the lessee a contractor within the meaning of the mechanic’s lien law for the alterations and repairs contemplated by the lease: Oregon Lumber & Fuel Co. v. Nolan, 75 Or. 69 (143 Pac. 935). Thus the lessee will be considered as a contractor with the owner and the lien claimants as subcontractors in considering the rights of the parties herein.”
This statement practically disposes of the question raised by the notice of nonliability posted on the building.
“By this rule the laborer is not consulted, and he must accept the work under the conditions of the original contract, in the making of which he had no voice. It was to protect the workman against such conditions that our lien law was enacted. A lien is not given through the contractor by subrogation, but is a direct and independent lien to each claimant against the property.”
The opinion is not authority for the claim made. It does not go to that extent. In Zanello v. Heating Co., 70 Or., at page 76 (139 Pac., at page 575), Mr. Justice Ramsey said:
“The right to a lien was created by statute, and it cannot be annulled by the owner’s giving notice that he will not ‘recognize’ such right, or by saying, in the building contract, that he will not be responsible for the claims of persons furnishing material or labor for the building. A contractor, a subcontractor, or a person furnishing labor or material for a building can waive his right to a lien by agreeing that he will not claim a lien, or by assenting to a provision in a contract stating that no liens shall be claimed or filed upon the building. But a person furnishing labor or material that goes into a building cannot be deprived of his right to file a lien, excepting by his contract, or by acts on his part constituting an estoppel.”
By Section 7416, L. O. L., the right to a lien upon a building is conditioned upon the labor or material for which the lien is claimed being furnished “at the in
“The land upon which any building or other improvement as aforesaid shall be constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof (to be determined by the judgment of the Circuit Court at the time of the foreclosure of such lien), shall also be subject to the liens created by this act, if, at the time the work was commenced or the materials for the same had been commenced to be furnished, the said land belonged to the person who caused said building or other improvement to be constructed, altered or repaired; but if such person owned less than*42 a fee-simple estate in such land, then only his interest therein shall be subject to such lien; and in case such interest shall be a leasehold interest, and the holder thereof shall have forfeited his rights thereto, the purchaser of such building or improvements and leasehold term, or so much thereof as remains unexpired at any sale under the provisions of this act, shall be held to be the assignee of such leasehold term, and as such shall be entitled to pay the lessor all arrears of rent or other money and costs due under said lease, unless the lessor shall have regained possession of the said land and property, or obtained judgment for the possession thereof, prior to the commencement of the construction, alteration or repair of the building or other improvement thereon; in which event, said purchaser shall have the right only to remove the building or other improvement, within thirty days after he shall have purchased the same; and the owner of the land shall receive the rent due him, payable out of the proceeds of the sale, according to the terms of the lease, down to the time of such removal. ’ ’
Therefore, the posting of the notices by the Strowbridge Estate would not affect the matter of a waiver of the lien. The notice in question would not even inform the claimants that the Market Company, the contractor, had stipulated that no lien should attach to the premises; but, on the other hand, if considered with a knowledge of the provisions of the statute would tend to indicate that the owner of the estate had made no contract for the improvement.
“This particular stipulation, like all other stipulations, binds only those who made it or assented to it.”
From a reading of the 800 pages of typewritten testimony and an examination of the several contracts and exhibits in the case we find that each of the lien claimants filed a notice of lien within the statutory time, and that the work was performed and the ma
The decree of the lower court will therefore be affirmed. Affirmed. Rehearing Denied.