168 P. 1161 | Cal. Ct. App. | 1917
This is an action for a personal judgment against defendant, Greenamyre, and to foreclose a mechanic's lien for work alleged to have been performed by respondent, Pilstrand, for appellant, Greenamyre, in or about a building on land of which Greenamyre was in possession under an agreement of sale from appellant Stivers, who is the owner of the land. The lower court rendered a decree in favor of plaintiff, Pilstrand, against both defendants, and this appeal is from the judgment. Since this appeal was perfected, so it is stated by respondent and not denied by appellant, the building has been totally destroyed by fire, without insurance, and Greenamyre has abandoned all interest in the property and removed therefrom.
It is therefore the claim of respondent that the question before us is moot, and that the appeal should be dismissed. But accepting the fact as stated, the question would then arise whether a mechanic's lien fully perfected by filing the same upon the completion of the building survives the destruction *800 of the building and continues thereafter on the land which was found to be necessary to and for the convenient use and occupation of the building.
There is some apparent conflict in the authorities as to whether the lien attaches to the land at all events. On the one hand it is held by those jurisdictions adopting the so-called Pennsylvania rule that the lien includes the land only as an incident to the lien on the building, and when the building is destroyed, the lien ceases. On the other hand, it is held that the lien attaches to the land originally, and not alone as an incident to the lien on the building. The difference, however, will be found to arise from a difference in the text of the mechanic's lien laws rather than from any real difference in principle. In California the so-called Pennsylvania rule is followed. It has thus been decided that the destruction of the building prior to its completion destroys the lien, though the claim was subsequently filed against the land. (Humboldt LumberMill Co. v. Crisp,
There is sufficient evidence to support a personal judgment against appellant Greenamyre, but no such judgment was rendered, it being, if anything, joint against both defendants. There was no evidence to show the personal liability of Stivers. We cannot therefore affirm the judgment in any respect, but must reverse it, and this will carry with it the enforcement of the lien.
The judgment is reversed.
Chipman, P. J., and Hart, J., concurred. *802