80 Va. 573 | Va. | 1885
delivered the opinion of the court.
The transcript of the record of these causes (which were virtually one), shows the following facts: The appellant, who is a carpenter and general contractor, under a written contract, dated March 1 st, 1882, built for the appellee, C. A. Beck, on his lot in the town of Berryville, in the summer of 1882, a frame dwelling-house, for the contract price of $927. During the progress of the work, some changes were made in the plan, necessitating extra-work, for which extra-charges were made to the amount of $105. The house was completed and turned over to the owner, C. A. Beck, on 29th September, 1882; and an account was rendered to the said Beck by the appellant, 'which shows the work done and the material furnished; and, after crediting the partial payments, strikes a balance due of $667.
On the 6th October, 1882, appellant filed, in the clerk’s office of Clarke county, a paper in the following words, viz: “To balance of account rendered, for work and labor done, and material furnished, for your house;” and he made affidavit to the correctness of it, and appended to it a statement, declaring his intention to claim the benefit of the lien given by law to mechanics. This paper was duly acknowledged and admitted to record.
The question involved in the controversy is, whether the appellant duly complied with the requirements of the law in filing his account, as embodied in the paper aforesaid, filed by him, under the 3rd and 4th sections of chapter 115 of the Code of 1873?
The judge of the circuit court was of the opinion that the said paper relied on by the appellant to sustain his lien, was ■“ invalid and ineffectual for such purpose, because it is not drawn and recorded as the law requires, and that the relief pi’ayed for in said bill, so far as it is based upon said paper, should be denied, and doth so decide.”
Sections 2, 3 and 4 of chapter 115 of the Code of 1873, provide the machinery by which a mechanic or general contractor may avail himself of the lien there given. There have been several amendments of these sections, but they relate only to the time within which the account nmst be filed in the clerk’s office. Two modes of securing a lien are provided: one, under the second section, by recording the written contract, when there is one; and the other, under section four, by filing in the clerk’s office a true account of the work done or material furnished, sworn to by the claimant, with a statefnent attached, declaring
The proceeding in this case was under the 3d and 4th sections, obviously for the reason that the recordation of the written contract would not have covered the extra work. The appellant elected to proceed under the 3d and 4th sections; and the question to be determined is, whether he complied with the conditions prescribed in these said sections?
The 3d section enacts, “All artizans, builders, mechanics, lumber-dealers, and others performing labor or furnishing materials for the construction, repair or improvement of any building or other property, shall have a lieu, as hereinafter provided, upon such property,” &e.
The 4th section prescribes what shall be done by one seeking to secure the benefit of the provisions contained in the 3d section, as follows: “A general contractor, wishing to avail himself of the lien given him by the preceding section, shall file, within thirty days after the completion of the work, in the clerk’s office of the county or corporation court of the county or corporation in which the property upon which a lien is sought to be secured is situated, * * a true account of the work done or material furnished, sworn to by said claimant or his agent, with a statement attached signifying his intention to claim the bcnelit of said lien, and setting forth a brief description of the property upon which he claims the lien. It shall be the duty of the clerk in whose office such account and statement shall be filed, as hereinbefore provided, to record the same in a book kept for that purpose; and from the time of such filing all persons shall be deemed to have notice thereof.”
The apjoellant contented himself with filing with the clerk a statement of a balance of money due per account rendered — previously to C. A. Beck. To comply with the statute, the account
The appellant, in his petition for a supersedeas, says : “ The statute requires a true, account — not an itemized account; and an account may be true though it be not itemized.'” It is difficult to conceive how, without items, there can be an accoxmt — which is an itemized or detailed statement of the transactions to which it relates. But the difficulty in this case is not alone that it is not an itemized account, but that it is not an account of the things requi red by the statute — of 'work done and materialfurnished.. But if it be true, as insisted, that when a’ contract is made in gross for the erection of a building, and supplying the material entering into its construction, the law is complied with by filing a statement of the amount due and oxving for the work, it is not applicable in this case, because a considerable portion of the work was done, and material furnished, under verbal contract or contracts, outside of and not included in the written contract with Beck; all of which are embraced in the itemized account rendered by appellant to Beck, but which account was not filed by appellant in the clerk’s office to be recorded as the law requires. It was indispensably necessary for appellant to have filed this account in the clerk’s office, and the law makes it the duty of the clerk to record it, so as to affect all persons with notice of the lien claimed, and to warn and protect all subsequent purchasers or incumbrancers. Boston & Co. v. C. & O. Railroad. Co., 76 Va. 182.
The statute now under consideration extends to certain classes of operatives and others of the people embraced in its prolusions, a security for their claims, that no other class enjoys; and it is no hardship, in consideration of this, to require them to comply with the terms upon which the benefaction is offered to them. The feature of the mechanic’s lien law, now under consideration, is not peculiar to the Virginia law. Many of the states of the TJnion have precisely the same provision (see Maryland Code, 3878, pp. 695-702, sections 11 and 9), and in some of them the question which this court is asked to determine in this case has been considered and decided.
In the case of Davis v. Livingston, 29 California, it is said, “ The remedy is an extraordinary one, and, therefore, all the provisions of the act must be strictly complied wifh.” (Citing Walker v. Hauss-Hijo, 1 Cal. 185; Bottomly v. Grace Church, 2 Cal. 91.)
In- the case of Noll v. Swineford, 6 Penn. 187, Henry Noll, (carpenter) of the township of Penn, in the county of Union, and state of Pennsylvania, filed his claim for $579.65 as well against a certain brick building or house- o'f worship, erected on part of lot No. 104, as the piece of ground or curtilage appurtenant therto situate, etc.: which sum of $579.65 the said Henry Noll claims to be due him for carpenter work and labor done and performed in and about the erection of said building as a carpenter, and for materials, to-wit: lumber furnished by the said Henry Noll between the 29th day of June, 1843, and the 23d February, 1844, etc. Bell, J., after instructing the
In the case of Trustees of the German Lutheran Church v. Heise & Co., 44 Md. 454, the claim was for materials furnished, and the notice of the intention to claim the lien states the amount of the claim as charged in an itemized account, but “failed to state what the claim was for, whether work or materials.” The court says, “As decided in the case of Thomas v. Barber, 10 Md. 380, the object of the notice is to impart information to the owner of the amount and character of the claim intended to be fixed as a lien upon the property, so that he may protect himself in his future dealings with the contractor. The requirement of the law in this respect imposes no hardship upon the party asserting the lien, but only secures to the owner as a means of protection what the legislature intended for his benefit. The notice here would seem to be fatally defective.”
In the case at bar, if the appellant has failed to secure the benefit of the statute, such failure is due wholly to want of attention to the express and plain provisions of the law. "We do not think that the circuit court erred in holding that the paper filed with complainant’s bill, as Exhibit No. 1, whereby he sought to secure a mechanic’s lieu upon the property referred to in the said bill, is invalid and ineffectual for such purpose, because it is not drawn and recorded as the law requires, and that no lien was created upon the property of Beck, the ap-pellee, by appellant filing in the clerk’s office the said paper; and that L. W. Candler purchased the property free and discharged of any lien or incumbrance in favor of the appellant. But although Candler, the purchaser, cannot be affected with notice by' implication of law, because of the failure to file and
But suppose, in fact, they did have notice, would that have cured the error or failure of appellant to file his account and statement according to the requirment of the statute ? Suppose' appellant had actually showed the items of his account to Candler, the purchaser of the property, and not filed it in the clerk’s office at all, could he thereby assert a lien upon the property? The question in the case is, did appellant proceed according to law so as to acquire a lien on the property under the third and fourth sections of the statute ?
Candler is a complete purchaser. He paid to Beck all the purchase money, reserving, by the contract, enough to pay the liens which he assumed to pay by the contract; and he has received his deed for the property. Subsequent leinors, Moore, Russell, and Riely & Tucker, have all acquired claims on the fund, without notice of appellant’s claim, and for valuable consideration. They have been diligent and active in asserting their rights; he has failed to pursue the plain and express provisions of the statute. Appellant complains of the decree rendered in the court below in the suit of Candler v. Russell, heard with this cause of Shackleford v. Beck, &c. This was a decree perpetuating an injunction against the enforcement of a judgment in favor of Russell against McDonald and Moore, out of the purchase money still in the hands of Candler, reserved expressly to pay liens upon the property obtained before Russell’s judgment; and of this he cannot complain.
Decrees affirmed.