236 P. 357 | Cal. Ct. App. | 1925
The Harbolt Hotel Corporation was, on the seventeenth day of April, 1917, the owner of a certain lot in the city of Los Angeles, and on said day said company entered into a written contract with one Valentine Hetzel for the erection on said lot of a hotel building. Said contract was not filed for record in the office of the county recorder of said county until the ninth day of June, 1917. On April 30, 1917, said hotel company executed a mortgage upon said real property in favor of appellant, the Western Loan and Building Company, to secure the payment of a promissory note for $42,972.50, and said mortgage was, on the seventh day of June, 1917, duly filed for record in the office of the said county recorder. Thereafter, respondents performed labor and furnished material in the construction of said hotel building, under said contract between said hotel company and the said Hetzel. Failing to receive payment for said labor and materials they filed liens for the respective amounts due them and thereafter instituted their actions for the foreclosure of such liens. The court rendered judgment in favor of said lien claimants, the respondents herein, not only sustaining their liens but decreeing that said liens were prior and superior to the mortgage lien of the Western Loan and Building Company, the appellant herein.
[1] The court found that prior to the execution and recordation of appellant's said mortgage, and on or about the seventeenth day of May, 1917, but prior to June 1, 1917, said contractor Valentine Hetzel, in pursuaance of the said contract for the construction of said hotel, began the erection and construction of said building and continued work thereon until the early part of November of said year. Appellant contends that the construction of said building was not commenced until after its mortgage had been filed for record in the office of said county recorder, and it attacks the finding of the court that the said contractor began the erection of said building prior to the 7th of June, 1917, as unjustified *4 by the evidence. In support of this contention appellant refers to the testimony of F.H. Gentry and J.D. Brady to the effect that they visited the real property in question on the morning of the seventh day of June, 1917, for the purpose of seeing that work upon the building had not been commenced before the mortgage was recorded. These two witnesses both stated that they went upon said lot on said day and found no evidence of any work having been done on the building or indicating that the construction of said building had been commenced. And, furthermore, that there was no building material or machinery of any kind upon the lot at this time. Appellant calls our attention to the fact that these two witnesses were the only witnesses who testified at the trial as to the appearance or condition of said lot on the seventh day of June, 1917, the date the mortgage was recorded, and that therefore their testimony is uncontradicted. But there was testimony that some time during the latter part of May or the first part of June, 1917, and one witness in one part of the testimony puts the time as two days before appellant's mortgage was recorded, a firm by the name of Faulkner Hobson, as subcontractors under the original contractor, Hetzel, were at work upon said lot, making excavations thereon to be used and which were actually used thereafter in the erection of said building; that said subcontractors excavated a trench along the front line of said lot about sixty feet in length and three or four feet in depth, and they spent two days in making such excavations, when they were stopped in their work because it was found that appellant's mortgage had not been recorded. Furthermore, that before these subcontractors had quit the premises, the witness F.H. Gentry, who represented appellant in certain matters and who testified that he went upon the lot on the morning of June 7, 1917, for the express purpose of seeing whether any work had been begun upon the building, visited the property and stated to the original contractor, Mr. Hetzel, "This work has to stop as the mortgage has not been recorded." He was informed by Mr. Hetzel that "We are just quitting. Harbolt was here and told us about it." The subcontractors thereupon quit all work and removed all their machinery and tools from said lot. After the mortgage had been recorded they resumed the work of excavating for the building, but being unable to give the *5 bond required of them, they ceased work altogether before finishing their contract.
As to just what is meant by the term "commencement of work" and as to the amount and character of work necessary to be done upon a building in order to say that work has been begun thereon, we think the true rule is stated in Phillips on Mechanics' Liens, third edition, page 387, where it is said: "What this law means is some work and labor on the ground, the effects of which are apparent — easily seen by everybody; such as beginning to dig the foundation, or work of like description, which every one can readily see and recognize as the commencement of a building." Applying this rule to the evidence before the court in this action, we cannot say that such evidence is not sufficient to sustain the finding of the court that work was commenced upon the building prior to the time that appellant's mortgage was filed for record.
Appellant's main contention on this appeal, however, is that the lien of its mortgage is superior and prior to the liens of respondents, even conceding that work was commenced upon the building before its mortgage had been recorded. Section 1186 of the Code of Civil Procedure provides as follows:
"Effect of Liens. The liens provided for in this chapter are preferred to any lien, mortgage, or other encumbrance which may have attached subsequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished; also, to any lien, mortgage, or other encumbrance of which the lien-holder had no notice, and which was unrecorded at the time the building, improvement, or structure was commenced, work done, or the materials were commenced to be furnished."
In the case of McClain v. Hutton,
[2] The liens of respondents herein, however, rest upon a somewhat different basis. Since the decision of McClain v.Hutton, supra, and in 1911 (Stats. 1911, p. 1313), section
There is nothing in the decision of Roystone v. Darling,
The respondents in this action, having performed labor and furnished materials under a contract between the owner and contractor, are entitled to liens for such labor and materials; and as such contract was a valid contract, their liens relate back to the date of the commencement of the work upon the building. Their liens are, therefore, prior to that of appellant's mortgage, which was not filed for record until after the commencement of said work.
[6] Appellant makes a further contention that respondents, in order to perfect their liens or to give them any vitality whatever, were required to file their respective claims of lien for record within thirty days after they had respectively furnished their last work and material. We think this contention is answered by section 1187 of the Code of Civil Procedure, which provides for the time of filing claims of lien. In a recent decision our supreme court has held in a case where the contract between the owner and contractor had not been filed as required by section
For the reasons hereinbefore expressed, judgment is affirmed.
Conrey, P.J., and Houser, J., concurred. *10