Smith v. Bowder

141 N.W. 786 | S.D. | 1913

WHITING, P. J.

This action was brought to foreclose a mechanic’s lien and to establish its priority over certain mortgage and judgment liens. The cause was submitted upon an agreed statement of facts, and judgment was rendered thereon in favor of defendants. From such judgment and an order denying a new trial, plaintiff has appealed.

[1] Appellant has raised several questions, not one of which is, under the .view which we take, necessary for our- consideration. The trial court held the alleged lien to be “invalid and void”; the record does not reveal -the ground for such holding, "but, if it is clear that there exists a fatal defect in the alleged lien which could not be cured, the judgment must be sustained, even though the record revealed that the trial court’s holding was based upon an erroneous 'ground. Sioux Remedy Co. v. Cope, 28 S. D. 397, 133 N. W. 683.

[2] Appellant furnished building material to be used, and the same was used in the erection of two dwelling houses upon an undivided lot upon which there had theretofore been erected another dwelling house. When this material was furnished, the lot in question was the homestead of the owner, who, as the head of a family, was occupying the last-mentioned dwelling house.

The affidavit claiming lien was, so far as material tO' our discussion, in words as follows: “Mechanic’s Lien: State of South Dakota, County of Gregory — ss.: L- D. Hills, being duly sworn, says that * * * he made a contract with Ida Stow Bowder to furnish lumber and building material for a certain house, used as a dwelling house, situate upon the following described land of which the said Ida Stow Bowder was then and is now the owner, to-wit: Lot 6 in Keller Acres; * * * that -said account is just, true, and full statement of the material so furnished to said Ida Stow Bowder under said contract for the dwelling aforesaid and * * *. for which mechanic’s lien is hereb)r claimed in favor of the said Jas. A. Smith upon 'said dwelling, including the land upon which the same is situated. * * * [Signed] L. D. Hills, Agent for Jas. A. Smith.”

It will be noticed that the contract was to supply material for two dwelling houses to be erected upon this lot, which lot was, up to that time at least, entirely exempt from mechanic’s liens. Appellant, in his affidavit filed, claimed a lien upon the whole of said premises, but in his brief he makes no contention, and certainly could not, that the entire premises lost their homestead character through the placing of these two dwellings -upon the lot. Without determining whether, if a person file an affidavit for lien describing more property tlian he is entitled to> a lien upon, such lien will ■be, held good as against such part as was subject to the lien, it is clear that in this case the claim or affidavit for lien was absolutely void for uncertainty. It will be noticed that, while the material was furnished to be used in the erection of two dwellings upon a lot where one dwelling was then standing, the lien as filed alleges the contract for furnishing “material for a certain house used as a dwelling house.” This wording might indicate that it was the house already standing upon the premises for which the material was furnished, and upon which, “including the land upon which the same is situated,” a lien was claimed. Thus construing the affidavit for lien, it is clearly invalid, as such dwelling and land upon which it stood clearly remained exempt as the owner’s homestead. If the words, “a certain house, used,as a dwelling house,” refer to one of the dwellings in the construction of which this material was in fáct used, the description in the lien is still fatally defective as it in no manner, points out or locates which one of such dwellings it is upon which the lien is claimed; certainly,' under such affidavit, no lien is reserved upon both of said houses.

[3] The description of property in an affidavit filed claiming a mechanic’s lien, though not necessarily as definite and certain as required when property is described in a deed or a judgment, must be such as will enable one familiar with the location to identify the property upon which the lien is intended to be claimed, and, if it is not accurate to that extent, it is fatally defective. It must be a description sufficient upon which to base a decree which will enable a purchaser to find the property described. 27 Cyc. 157; Dusick v. Meiselbach, 118 Wis. 240, 95 N. W. 144; chapter 32,'Phillips on Mechanics’ Liens; Rockel on Mechanics’ Liens, §§ 103 and 105. It is clear that the affidavit filed was wholly insufficient to enable a court to render a decree of foreclosure as against the nonexempt part of the property, if any of such property was not exempt.

The judgment and order denying a new trial are affirmed’.