3 S.D. 440 | S.D. | 1893
This was an action to foreclose a lien for material furnished under the mechanic’s lien law of this state. Judgment was rendered in favor of the plaintiff against both defendants, and the defendant Haft appeals. The complaint is in the usual form. The defendant Haft answered, denying all the allegations of the complaint except the transfer of the claim to the plaintiff, and set up affirmatively that he was the owner of the premises upon which the lien was sought to be foreclosed. The case was tried by a referee, who found the facts and stated his conclusions of law thereon. The facts found, material to the determination of this appeal, are as follows: That on March 8, 1887, the defendant James Haft was the owner of the land on which the
Numerous errors are assigned and set out at length in the abstract, but the learned counsel for the defendant Haft have condensed them in their brief into three propositions, only two of which will be considered, as the second was abandoned on the argument. “(1) It appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action. * * * (3) The court’s conclusions of law, and the judgment, are unsupported by, and are contrary to, the findings of fact, and are contrary to law.”
The objection that the complaint does not state facts sufficient to constitute a cause of action is not made to the complaint proper, but to the account filed, a copy of which is annexed to the complaint as an exhibit, and made a part thereof. The counsel for appellant contend that it appears from the account filed that the firm of W. W. Pinkerton & Co. were the parties entitled to the lien, and not the plaintiff individually, by whom the lien was filed, and that it is not stated therein that the claim was assigned by said firm to the plaintiff. This objection assumes that the lien was filed by the plaintiff. It is, however, alleged in the complaint that the account was filed by W. W. Pinkerton & Co., that the contract for the material was made by that, .firm, and that the material was furnished by that firm. Substantially the same facts are stated in the account filed, as appears from the copy annexed to the complaint as an exhibit. The concluding statement, therefore, in the account filed, that “the affiant claims a lien on said premises,” should, we think, be construed with reference to the other statements in the account, and understood as claiming a lien for the firm of which affiant was a member. The plaintiff tan stated no facts in the account filed which would entitle him to a
Other objections are made to the exhibit, but, as they go mainly to the form of certain statements therein, as not being sufficiently specific, they are, in our opinion, without merit. The mechanic’s lien law does not prescribe any particular form in which the account to be filed shall be made out, but simply provides that “a just and true account of the demand due, * * * after allowing all credits, and containing a correct description of the property to be charged with said lien, and verified by affidavit,” shall be filed. Section 5476, Comp. Laws. When, therefore, an account filed states substantially the facts required to be stated by the statute, and is duly verified, we think it should be held sufficient. The mechanic’s lien law was designed for the protection of a meritorious class of persons, whose material or labor has contributed to create and bring into existence the buildings or improvements upon which the lien is claimed, or has enhanced the value of the property into which such material or labor bas entered, and should therefore receive a liberal construction, to effect, as far as possible, consistent with the rules of law and the rights of property owners, the object intended. Mining Co. v. Cullins, 104 U. S. 176; Davis v. Alvord, 94 U. S. 545. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application, under the Code of this state, as the rule has been abrogated by statute. Section 4768, Comp. Laws.
The findings in this case are' not, in our opinion, sufficient to warrant a court in concluding that Le Beau was in fact authorized to contract for material as the agent of Haft, and as such agent to subject the land of Haft to the lien. The fact that it was understood between Le Beau and Haft that Le Beau was to erect an opera house upon the land which he had contracted to purchase, and of which he was in the possession under such contract, would not seem to us to constitute Le Beau the agent of Haft, within the spirit and intent of the statute, which provides that for material furnished or labor performed under a contract with the “owner, his agent,” etc., the person performing such labor or furnishing such material shall have a lien upon the land, buildings, and improvements. Section 5469, Comp. Laws. The mechanic’s lien law has clearly defined when the interest in the land may be sold, and when the buildings, erections, and improvements may be sold separately and removed. Section 5479 provides “that the entire land, * * * to the extent of all the right, title, and interest owned therein by the owner thereof, for whose immediate use and benefit such labor was done or things furnished,” may be sold, etc.; and by the same section it is provided that the forfeiture of a lease shall not forfeit or impair such lien, so far as it concerns such buildings, erections, or improvements, but the same may be sold and removed by the purchaser within 30 days. By section 5480 it is provided that “the lien for the things aforesaid or work shall attach to the buildings, erections, or improvements for which they were furnished or done, in preference to any prior lien or incumbrance or mortgage upon the land upon which the same is erected or put,” and the same may be sold and removed by the purchaser within a reasonable time. “Incumbrance” is here evidently used in its enlarged sense, if of legal title to the land. Warden v. Sabins, 36 Kan. 165, 12 Pac. Rep. 520.
It cannot be said, we think, that the building in this case was erected for the immediate use and benefit of Haft, as he was not in possession, and had contracted for its sale to> Le Beau. Le
The counsel for appellant contend that the provisions contained in section 5480 apply only to tenants and leasehold interests, but we cannot agree with counsel in this contention. Tenants’ interests, as we have seen, are provided for in the preceding section. We are of the opinion that section 5480 applies to all cases when the lien claimant can acquire no beneficial interest in the land by reason of the legal title to the land not being chargeable with the lien, or there is a prior lien or mortgage that would prevent such lien claimant acquiring a beneficial interest in the land itself. The ¡same argument was presented to the supreme court of Iowa in the case above cited, but the court disposed of the question by saying: “We do not concur with the appellant’s counsel that section 1853 (of which our section 5480 is a copy) has sole reference to the case of buildings and improvements made by tenants, as specified in the preceding section.” We have not overlooked the cases cited by respondent of Henderson v. Connelly, 123 Ill. 98, 14 N. E. Rep. 1, and Hill v. Gill, (Minn.) 42 N. W. Rep. 295. But, without questioning the correctness of these decisions in the states where they were made, we are of the opinion that under the mechanic’s lien law of this state the doctrine of those cases is not applicable here. The law of this state having provided for a lien upon the buildings or improvements, and for a sale of them separately from the land, when such lienor can acquire no valid lien to the land, it must be held to give such lienor a lien upon the improvements only, and precludes him from acquiring any lien upon the land itself.