10 N.M. 476 | N.M. | 1900
This is an action to foreclose a mechanic’s lien upon three mining claims, known as the Hyde Bar, King Placer and Slice mining claims, and upon two gold saving machines situated on the Hyde Bar.
The cause was referred to a referee with power to find the facts 'and also make conclusions of the law therefrom. The referee after the evidence was heard and the arguments of the counsel, found in favor of the plaintiff below, appellee, in this cause, and the court overruled exceptions to the report of the referee and entered final decree in favor of the plaintiff below in the sum of $239.10. The decree also declared the plaintiff entitled to a lien upon all of the property, upon which the lien was sought to be foreclosed and ordered the sale thereof, or so much of said property as was necessary to satisfy the judgment lien of the plaintiff and awarded execution in the event of there being an overplus after the proceeds of such sale had been applied to the judgment. Fred H. Kent alone made defense in the lower court, on his own behalf, and he alone appealed and brought the case to this court for review.
The referee found from the evidence that the plaintiff had been employed by William Hendershott, foreman of the mines and gold saving machines, to labor upon said properties at a stipulated price of two dollars and fifty cents per day, and that Hendershott had full power and authority to employ the plaintiff to labor on said properties. He further found that defendant E. T. Fleming was the owner of the gold saving machines, of the Slice mining claim and a one-third undivided interest in the King Placer and Hyde Bar mining claims, and that the defendant Kent was the owner of a two-thirds undivided interest in the Hyde Bar and King Placer mining claims at the time the plaintiff was employed to labor thereon and actually performed the labor. The referee further found that the defendant, Kent, had full notice of the employment and knowledge that plaintiff was performing work and labor upon the Hyde Bar and King Placer mining claims, of which the defendant, Kent, was part owner, at the time the work was being done.
The defendant, Kent, testified in the court below that he simply gave his permission to Fleming and others to place the gold saving machines upon the mining claims of which he was in part owner and gave them permission to perform labor thereon with a view to a purchase of his (Kent’s) interest in these mining claims and also testified that Mr. Hen-dershott was not his agent, but that he was the agent of Fleming and others who owned the machines and other claims and that he was not responsible nor was his claim subject to any lien for labor performed on behalf of Fleming and Company. This testimony and this defense was before the referee when he made his findings in this case. This contention was not sustained by the referee nor by the court who passed upon the exceptions to the referee’s report and overruled the exceptions thereto.
The first and third assignments of error may be combined, and point out substantially the grounds upon which the appellant seeks a reversal; and are substantially, that the court and master erred in finding as conclusions of facts and law that the defendant, Kent, was responsible to the plaintiff for the work and labor done, and that the defendant (Kent’s) interest in said mining claims was subject to the plaintiff’s lien and for the satisfaction thereof.
> Section 2217 of the Compiled Laws of 1897 provides as follows: “Every person performing labor upon or furnishing' materials to be used in the construction, alteration, or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machine, railroad, wagon road or aqueduct to create hydraulic power, or any other structure, or who performs, labor in any mining claim, has a lien upon the same for the work or labor done, or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent; and every contractor, subcontractor, architect, builder or other person having charge of any mining claim, or of the construction, alteration or repair either in whole or in part of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purposes of this act.”
The master, in addition to this, finds that Kent had notice of the employment of the plaintiff by Hendershott, who was in •charge of the mining being done upon these claims, and also that he had notice that the work was being performed upon these claims, of which he was a part owner, by the plaintiff. These findings by the master were sustained by the court below and properly sustained, because the evidence shows that ■defendant Kent was there in person upon the mining claims while the plaintiff was laboring there, saw the work being ■done and took meals with Fleming and others; that even if it was an open question, the finding of the referee is sustained upon that point by the evidence; but the finding of the master, sustained as it is by the court below, is conclusive in this ■court as to the fact that the defendant, Kent, had knowledge that the plaintiff had been employed to labor upon the mines in which he was part owner, and that he actually did perform labor upon these mines. The defendant is supposed' to know the law which declares that a person in charge of work being done upon a mining claim is the agent of the owner for the •purpose of the enforcement of the lien law. The fact that he did not employ him is immaterial, because the statute declares that the person in charge of the mining operations with the owner’s knowledge shall be the agent of the owner.
The defendant, Kent, being thus charged with notice of the fact that the labor was being done by the plaintiff upon the mining claims of which he was the owner in part, was chargeable also with the knowledge that the labor thus performed would entitle the laborer to'a lien for the value of the labor. It, therefore, became his duty to protect his interest in these claims against the lien which would undoubtedly attach under the employment of Hendershott, notwithstanding the fact that Hendershott had not been employed to act as his agent.
It will be seen from this section that the responsibility is devolved upon the owner, or part owner, of mining claims and other properties subject to lien, to protect their interests by an affirmative act, that is, by posting a written notice in a conspicuous place upon the claims within three days after they obtain notice of labor being performed upon such claims as would authorize a lien thereon. This provision of law the defendant, Kent, was subject to, and it was a complete remedy for him by which to protect his interest. But the record shows that no such notice was posted or given; therefore, the statutory remedy was not invoked by the defendant, Kent, after he obtained knowledge that labor was being performed by the plaintiff, and the statute makes no other provisions for the protection of mine owners under such circumstances except the provisions to which we have just referred, nor do we know of any provision that exempts any owner of a mining claim from the duty of giving the statutory notice. The plaintiff under the law of this Territory was authorized to look to the owner of the mining claim for satisfaction of his claim where the owner has knowledge that he is performing labor and has a right to invoke the lien law to secure satisfaction of the amount due him, unless the owner shall post a notice as required by law. There was no error, therefore, in the finding of the master and the court below as to the right of the.plaintiff to a lien upon the mining claims of which the defendant, Kent, was a part owner, nor as to the responsibility of Kent’s interests for satisfaction of the debt and the lien.
Another error assigned is “That the court and master erred in admitting the lien filed by the plaintiff in evidence, because the same seeks to charge other mining claims with the lien for work and labor performed, but does not specify how much work and labor was done upon each of said claims separately.” It appears from the record and the findings of the referee and the court below, that the lien itself did not specify the exact amount of labor performed by the plaintiff upon each of the respective claims, but the complaint alleges and the proof shows the amount due upon each claim, and the court below ascertained and declared the amount due upon each. The error assigned as to this is not well taken, because it was perfectly proper to admit the lien filed in evidence. It was part of the plaintiff’s case and the failure to segregate the amounts due on each of the separate tracts of property does not invalidate the lien. Section 2222 provides that, “In every case in which one claim is filed asrainst two or more buildings, mining claims or other improvements owned by the same person, the person filing such claim must at the time designate the amount due to him on each of such buildings, mining claims or other improvements, otherwise the lien of such claim is postponed to other liens. The lien of such claim does not extend beyond the amount designated, as against other creditors having liens by judgment, mortgage or otherwise upon either of such buildings or other improvements or upon the land upon which the same are situated.”
This section of the statute does not -declare a lien void where the amounts are not segregated, but does provide that if there are other liens upon the property at the time, unless the amounts upon each claim is segregated, the lien will be postponed to other liens. In this case, so far as the record shows, there were no other liens upon the property of defendant Kent. The trust deed introduced in evidence here has no relation to the interest of Kent, but was given by Fleming and upon the interest of Fleming and Company alone, in the property involved in this suit, so that it would seem that the defendant, Kent, has no right to raise this objection inasmuch as it can not in any way affect his rights in the premises, unless this deed of- trust was accepted by the plaintiff in lieu of and as a waiver of the lien.
Counsel for defendant Kent insist that the deed of trust was introduced in evidence for the purpose of establishing this fact. In behalf of the defendant there is no other proof than the instrument itself. The plaintiff, however, testified, and the referee found as a fact, that the plaintiff was not a party to, and had no knowledge of the execution of the deed of trust introduced in evidence until it was recorded in the office of the probate clerk of Bernalillo county, New Mexico, and that said information was only gained from newspaper report. A reference to the deed of trust shows that there is no certificate as to the time it was recorded. The deed of trust was given by Everett T. Fleming to Wallace Hesselden, who was made party of the second part for the payment of numerous claims enumerated therein, among which was the claim of the plaintiff. It would thus appear to have been a voluntary instrument on the part of Fleming and would in no way bind the plaintiff unless the terms of the deed of trust were accepted by him in lieu of and as a waiver of the lien. In view of the finding of the facts in this case, there was no waiver of the lien in the case nor intention to do so, as the plaintiff testified he knew nothing of the execution of this deed of trust except from newspaper report and this information came to him after the instrument was recorded. The labor was performed between the 23rd day of May and the 15th day of August, 1897. The deed of trust bears date of 23rd day of August, 1897. The.lien was filed on the 28th day of August, 1897, which fact sustains the finding of the facts by the court and referee, as it is not to be presumed that the plaintiff would file a lien after he had accepted collateral security in lieu and as a waiver thereof. We must conclude, therefore, that there was no waiver of the lien by reason of the execution of the deed of trust, and the error assigned thereon is not well assigned.
From the above conclusions it is unnecessary for us to further examine the record in this case, and finding no error in the record, the judgment of the court below is affirmed with costs.
