20 Mont. 457 | Mont. | 1898
Section 2133, Code of Civil Procedure, provides, as follows : “The lien given extends to the lot or land upon which any such building, improvements, or structure is situated, to the extent of one acre, if outside of any town or city, or within any town or city, then to the extent of the whole lot or lots upon which the same is situated, if the land belonged to the person who caused said building to be constructed, altered or repaired; but if such person owned less than a fee simple estate in such land, then only his interest therein is subject to such lien.”
Section 2134 of the same code provides : “When the interest in the land, building, structure or other improvement, is a lease-hold interest, the forfeiture of such lease does not forfeit or impair such liens so far as concerns the buildings, structures and improvements put thereon by the person charged with such lien, but the same may be sold to satisfy said lien, and may be removed within twenty days after the sale thereof by the purchaser. ’ ’
In deciding the case the court evidently found and held that the work and labor performed and materials furnished by plaintiff and his assignor, Britton, did not constitute such “buildings, structures, and improvements” as could be removed from the premises, or buildings on the premises, at the time and before the plaintiff and his assignor performed the work and furnished the materials for which a lien is claimed. Appellant assigns this, decision of the court as error.
The same author says : ‘ ‘Lien not Extended Beyond Lessee’ s Interest. A statute authorizing a lien against a building erected by a lessee and his interest under the lease should not be extended in its operation by implication. It should be construed to embrace only such buildings as the lessee might himself, at common law, remove at any time during his term, before surrendering possession.” (Jones on Liens, § 1275 ; see, also, Rothe v. Bellingrath, 71 Ala. 55; Lothian v. Wood, 55 Cal. 159.)
The facts in this case are that Britton cut a doorway between the two buildings, and nailed and fitted a bar io the floor and wall of one of the buildings on which a lien is sought to be enforced. The plaintiff furnished some materials, such as paper, paint, etc., which he used in papering, painting, and calcimining parts of the houses. Now, how can that sort of work or repairs or materials be removed from the leased premises ? The lessees could not do it. If they had no such right or interest in the premises as would permit them to remove such repairs, how can the plaintiff do so, who only has a lien, under the statute, on the interest the lessees had in the premises? As a matter of common sense, what did the lessees, or the plaintiff, or his assignor, Britton, put upon the premises that can be removed ? You cannot remove the hole Britton cut in the wall to connect the two buildings. The bar cannot be removed, for it is the property of the lessors of the premises. The paper, paint, and calcimine cannot be taken from the walls.
There is nothing shown to have been put upon the premises by the lessees that is susceptible or capable of severance or
But the appellant insists that the forfeiture of the lease by the lessees does not affect the right of the plaintiff to a lien. Suppose we admit this contention. Suppose the lessees had not forfeited their lease, and were now in possession of the premises, what is there in the premises in the way of ‘ ‘buildings, structures, and improvements, ’ ’ or anything else, placed there by the lessees or the plaintiff and Britton, that could be removed, and sold to satisfy the lien claimed by plaintiff ?
The court found, and rightly, too, that there was never any contract between plaintiff and Britton and the lessors by which the lessors became in any way liable for the accounts for which a lien is claimed in this action. On the contrary, the evidence shows that the lessors told the plaintiff and Britton, when they commenced to do the work and furnish the materials sued for, that they must look alone to Johnson & Ryan, the lessees, for their pay.
There is, in our opinion, no fact or circumstance disclosed by the record, nor any rule of law cited by counsel, that would authorize a judgment against defendants Lienneman & Schmidt, the owners and lessors of the premises in suit, or the sale of their property, to satisfy the claims of plaintiff.
The judgment appealed from is affirmed.
Affirmed.