59 Md. 469 | Md. | 1883
delivered, the opinion of the Court.
On the 19th day of December, 1818, George A. Elickinger and George W. Beifsnider, and George A. Elickinger and George W. Beifsnider as partners, executed a deed of all their property,'real, personal and mixed, in trust for the benefit of creditors. The trustees, under the provisions of the deed, sold the property, and the proceeds were brought into the Circuit Court for Carroll County sitting in Equity, for distribution. Among other claims against said trust estate is that of Samuel E. Beindollar, as follows:
Samuel E. Beindollar, of Taneytown, Carroll County, Maryland,, dealer, &c., &c., claims that by virtue of the provisions of Article sixty-one of the Maryland Code of Public General Laws, relating to mechanics' liens, he is entitled to, and has, a lien on the building and ground hereinafter mentioned, for the payment of the sum of two hundred and seventy-nine dollars and sixty-two cents, a debt due and owing by the above named George A. Elickinger and George W. Beifsnider, partners, trading under the name, firm and style of Elickinger and Beifsnider, for' lumber and materials furnished by him at the instance and request of said Elickinger and Beifsnider, and used in the erection of a building, two stories and attic, twenty by thirty feet, with shed attached one story high, by said
In an account filed by the auditor in the Circuit Court, this lien claim of Samuel E. Reindollar is allowed in full. To this account exceptions were filed by Mary C. Flickinger who held a mortgage on the said property executed by her husband, George A. Fliekinger, before the execution of the deed of trust. Testimony was taken and the case being submitted, the Circuit Court (Miller, J.) passed an order sustaining said exceptions. From this order an appeal has been taken by Samuel E. Reindollar and the questions presented are now to be determined by this Court.
The learned Judge who considered and determined the matters involved in controversy, in the Circuit Court, in his opinion says:
“ The claimant presents his claim as a mechanics’ lien, and insists that it is entitled to priority of payment on that ground. The question is whether a valid mechanics’ lien has been made out? In the most recent case on this subject, that of Wehr, et al. vs. Shryock & Clark, decided by the Court of Appeals at its last October Term, (55 Md., 336,) it was held in accordance with previous decisions on the same subject, that a mechanics’ lien is purely the creation of statute law, and to maintain and enforce it the requirements of the statute must be substantially complied with. One of these requirements, (Code,
“Now, in this case, I find no clear and explicit statement, in the claim as filed, as to who is the owner or reputed owner of this building. The claim in entitled : ‘Samuel E. Reindollar vs. George A. Eliclcinger and George W. Reifsnider, trading under the name, firm and style of Eliclcinger and Reifsnider.’ It then sets out
“ The bill of items of materials thus bought by Flichinger and Reifsnider from the claimant is then set out, and the claim concludes with the averment that it has been filed within the time required by law, in order that the claimant ‘may have and obtain the full lien remedies provided by law for the payment of said claim against said building and the ground upon which it stands, and so much other ground immediately adjacent thereto, as may be necessary for the ordinary useful purposes of such building.’ In all this there is no explicit averment that any one is the owner or reputed owner of the building in question. The proof shows that the firm had no interest whatever in this building, or the ground upon which it was built. These belonged solely and exclusively to Elichinger in Ms individual right, and were never partnership property.
“ It may be, therefore, clear by the proof that Elichinger was the owner of the building, but this cannot supply or cure' a defect in the statement of the claim. The law has made a statement of ownership, or reputed ownership, on the face of the claim, essential to the existence of the lien. Again it is sufficiently clear upon the face of the claim, that the contract for furnishing the materials
The above opinion of the learned Judge affords so lucid an exposition of the principles underlying and controlling this controversy, as to render nugatory any attempt at emendation. It is true that the statute giving the remedy is not to receive the strict and rigid construction applicable to an Act in derogation of the common law ; yet there must be a substantial compliance with its requirements as plainly expressed. This lien is not the creature of contract. It exists and is operative by virtue of statutory provisions ; and unless the requirements of the legislative enactment are observed, the claimant is beyond the scope of the remedy. The order appealed from will be affirmed.
Order affirmed, and cause remanded.