49 Cal. 336 | Cal. | 1874
The action is brought to enforce liens claimed by the plaintiffs and others upon a quartz mill in Mariposa county, as laborers and material men, under the provisions of the Act of March 30, 1868, for securing liens of mechanics and others. The “ Maxwell’s Creek Gold Mining Company,” the owner in fee of the premises, was not in possession at the time the labor was done or the materials furnished upon which the liens in question are predicated, but one Gilbert Douglass, as the lessee of the company for a term then unexpired, was in possession, and he alone caused the work to be done and the materials to be furnished. The Court below rendered judgment enforcing the liens upon the premises, including the interest of the company therein and also against the company for any deficiency remaining after the sale.
1. The Act of March 30, 1868, as we understand it, does not authorize a personal judgment "against the company, under the circumstances of this case. It provides (Section 2), that if the person causing the work to be done own less than the fee of the premises upon which it is done, “ then only his interest therein shall be subject to such lien,” unless (Section 4) the general owner in fee, having obtained knowledge of the construction or intended construction, etc., shall fail to give notice that he will not be responsible for the same—in which case the lien affects his interest also. There is no personal liability provided for in this connection; the provision found in the second subdivision of Section 10, that each claimant shall be entitled to an execution for any balance due him after the distribution of the proceeds of the sale, must be' confined to those cases in which a defendant, upon general principles of law, and irrespective of the provisions of the Act, would be personally liable for the work done and materials furnished.
2. The evidence tended to show, and the Court below found as a fact, that the President of the corporation defendant, Maxwell’s Creek Gold Mining Company, person
But the lien of Smith, Dickenson & Co., while it will not be disturbed as to the leasehold interest of Douglass (he not having appealed), cannot be maintained as against the estate of the corporation defendant. The statute (Sec. 5), provides that the claim filed with the County Recorder to preserve the lien, shall state among other matters, “the name of the owner or reputed owner (of the premises) if known.” Upon this requirement of the statute, we said in Hicks v. Murray, 43 Cal. 515: “ The statement of the owner or reputed owner is material—not less so than the statement of the amount of the demand, after the deduction of just credits and offsets. The statute requires both, and makes them equally indispensable.”
In the claim of Smith, Dickenson & Co., no statement of the owner or reputed owner of the premises is found. The statute, in the same section, requires that the name of the person to whom the materials were furnished, shall also be set forth in the claim filed with the County Recorder; no such statement is found in the claim of Smith, Dickenson & Co. Liens of the character of those here in controversy are created by the statute, and they can, of course, have no status, except through a substantial observance of its requirements upon the part of the claimant. The cause must, therefore, be remanded, with instructions to the Court below to modify the decree, in accordance with this opinion, the respondents to pay the costs of this appeal. So ordered.
Mr. Justice Niles did not express an opinion.
