131 P. 368 | Cal. | 1913
The above entitled actions for the foreclosure of mechanics' liens were consolidated for trial. At the close of the cases of plaintiffs, the defendants made motions for nonsuit, which were granted, and judgment dismissing the action entered. The plaintiffs appeal from the judgment.
The defendant Brown was and is the owner of a lot on the corner of Mission and Seventeenth streets, in the city and county of San Francisco, having a frontage of one hundred and ten feet on Mission Street. Adjoining this property to the south is a lot, fronting fifty feet on Mission Street, owned by the defendant Agnes C. Doran. On July 17, 1906, Brown leased his lot to the defendant Louis T. Samuels for a term of five years from August 1, 1906. The term was subsequently extended to July 31, 1914. In the lease Samuels covenanted that he would, with all reasonable dispatch, erect building improvements upon the demised premises. It was also agreed that all such improvements should at the expiration of the term, or sooner determination of the lease, become the property of the lessor. Samuels, on July 29, 1906, sublet the premises to the defendants Moses Davis and Samuel Davis for a term ending August 1, 1914, by a lease containing the same provisions with reference to improvements as those found in his lease from Brown.
On January 21, 1907, the defendant Agnes C. Doran leased her lot to said defendants Davis for a term of eight years beginning February 1, 1907. By this lease the lessees agreed to pay all taxes on "the value of all improvements that may be erected upon said land by said" lessees. They were given authority to remove any buildings or other improvements that might be erected by them on the land, provided that such improvements were removed before February 15, 1915. If not then removed, the improvements were to become the property of the lessor. It was further agreed that all improvements made upon the land should be security for the payment of rent and for the other covenants of the lease.
After the execution of the leases to the defendants Davis, said defendants employed the plaintiff Malsbary to prepare *196 plans for a building and to superintend its erection. The building was commenced in April, 1907, and completed in November, 1907. The various plaintiffs furnished labor and materials for use in, and which were used in the construction of the building, and, within the time allowed by the statute, filed claims of lien for the unpaid portions of their respective demands.
The building erected covers a frontage of one hundred and twenty feet of Mission Street. It occupies all of the Brown lot and the northerly ten feet of the Doran lot. Neither Brown nor Mrs. Doran ever posted the notice described in section 1192 of the Code of Civil Procedure, disclaiming responsibility for said improvements. The record contains no evidence tending to show that either of said defendants had actual knowledge of the construction in time to have posted such notice.
The principal question is whether, under the facts above recited, the defendants Brown and Doran should be held to have had constructive notice of the erection of the building in question, in such manner as to render their interests in the respective lots subject to the liens claimed by plaintiffs. The respondents contend: 1. That there was nothing to impute to either of the owners notice of the erection of any kind of an improvement upon either of the lots; and 2. It is argued that, if notice were to be imputed to them at all, it could only be notice to each owner of a building erected solely upon his or her lot, and not notice that a single building, covering, in part, both lots, was being erected "jointly on the two parcels of land." As a corollary to the second position, it is urged that neither lot of land is, so far as the interest of the defendants Brown and Doran is concerned, subject to the liens here asserted. In discussing these questions, we make no separate mention of the defendant Samuels, as his position is, for the purposes of this inquiry, substantially the same as that of the defendant Brown.
To the first of the propositions just stated, viz., that neither of the owners would, under the circumstances disclosed, be chargeable with notice of the erection of a building standing entirely upon his or her lot, we cannot give our assent. Under section 1192, as it read at the time of the transactions here in question, improvements erected upon the land of one who, *197
although not in fact authorizing them, fails to give the required notice within three days after obtaining knowledge of the construction or intended construction, are deemed to have been constructed at the instance of the owner, and his interest is made subject to liens (West Coast Lumber Co. v. Newkirk,
These decisions leave no room for question that Brown, at least, was chargeable with constructive notice of the erection of improvements under the authority of the lease made by him. That lease did not merely permit improvements; it bound the lessee to erect a building on the entire lot "with all reasonable dispatch." It further vested the ownership of such building in Brown upon the termination of the lease. *198 These circumstances certainly required him, as a prudent man, to prosecute inquiry to ascertain whether his lessee was complying with his obligation to promptly construct improvements which were to inure to the benefit of the lessor. Under the terms of the lease, it may further be remarked, a failure by the lessee to perform any of his covenants, including the covenant to build, was made a ground for terminating the lease.
In the case of the defendant Doran, the conclusion is not so obvious. Yet we think that she, too, must be held to have had constructive notice of the erection of any building that might be constructed on her lot by her lessees. While her lease to the defendants Davis did not require the latter to erect improvements, it contained provisions indicating clearly that the parties contemplated such erection. The lessees bound themselves to pay taxes on improvements that might be erected. While they were given the right to remove such improvements, this right was conditioned upon the removal being effected within a certain time. The lessor stipulated for and obtained under the lease a beneficial interest in any building that might be constructed. Not only was she to become the owner of such building if it were not removed within the time limited, but it at once became security for the performance of all covenants of the lessees. Knowing, then, that she had given the lessees the right to erect improvements upon her property, and being interested in any improvements which they might erect, the due protection of her own rights required her to make such inquiry as would disclose whether or not the lessees were proceeding to build upon the lot. Some weight, too, is to be attributed to the circumstance that the property leased was a vacant city lot, and that the lessees contracted to pay a substantial rental. The expectation of the parties must have been that the lessees would utilize the only available method of realizing a benefit from such property, that is to say, by improving it with a building which could be rented or used by themselves.
The decisions cited above fully justify the conclusion that the facts in evidence were sufficient to give Mrs. Doran constructive notice of the erection of a building on her lot by her lessees. Her position is closely analogous to that of the lessor in Evans
v. Judson,
There remains the question whether there is to be imputed to the respective lessors notice of the construction of a single building covering, in whole or in part, the lots owned by them severally. As the respondents view the case, the question is whether an owner of one lot can be charged with liens for the construction of a building erected in part on his lot and in part on the property of another, where the owners of the two lots have not jointly authorized the construction. It is, in effect, conceded that where there has been such joint authorization, the owners have by their act treated the several lots as a single parcel, and thus subjected the combined property to liens for the building or improvement erected on them jointly: Lamont v. LaFevre,
This argument, we think unduly limits the scope of the notice imputed to the respondents and the effect, under section 1192, of their failure to post a disclaimer of responsibility.
The provisions of the Code of Civil Procedure impose a lien upon the building or improvement (sec. 1183; Willamette S.M. Co.
v. Kremer,
The lien imposed upon the land under section 1185 is limited to the interest of the person who caused the building to be constructed, but by the provisions of section 1192 the interest of other persons who, with knowledge of the construction fail to disclaim, is also subjected to the lien. (Harlan v. Stufflebeem,
But, it is said, the respondents are not chargeable with notice that any joint construction on the two lots was being undertaken. *201 If such notice was necessary to the imposition upon their land of liability for the liens, we think they had it. The constructive notice imputed to them by the facts putting them upon inquiry extended to all matters which they would have learned by a proper prosecution of such inquiry. The execution of the leases required them, as we have seen, to be reasonably diligent to learn what improvements were being put upon their lots by their lessees. Such inquiry, if it had been undertaken, would have disclosed that a single building was being erected upon ground which comprised, in whole or in part, both lots. This fact itself, if properly followed by the inquiry which it would naturally induce, would have led to the further discovery that the building was being erected under the single authorization of persons claiming a leasehold interest in both lots. There is no reason for holding that each of the owners had a right to assume that the lessees would erect nothing but separate buildings upon the respective lots. Neither lease contains any restriction to this effect, and it is not contended that the defendants Davis violated any duty which they owed to either lessor by constructing the building as they did.
We hold, accordingly, that the land necessary for the convenient use and occupation of the building was liable, as a whole, for liens, regardless of the separate ownership. This being so, there is no merit in the additional ground of nonsuit urged against three of the plaintiffs, viz., that they had failed to prove allegations of their complaints to the effect that eleven-twelfths, in value, of the work done, was bestowed upon the property of Brown, and one-twelfth upon that of Mrs. Doran. In view of our conclusion that the land of both of these defendants was chargeable as a unit, this allegation was entirely immaterial, and no proof in support of it was required.
The judgment is reversed.
Angellotti, J., Shaw, J., Melvin, J., and Henshaw, J., concurred.
Rehearing denied. *202