58 Colo. 563 | Colo. | 1913
delivered the opinion of the court:
Talbott and Mugivan, defendants in error, owners of four lots on Champa street between Fourteenth and Fifteenth streets in the City of Denver, entered into a written contract by which they leased them to The American Music Hall Company, a corporation, for the term of ninety-nine years. The lease contract provided, inter alia. “That on or before the first day of July, A. D. 1910, the lessee will proceed to improve said premises by the erection, construction and maintenance of a building covering said premises, said building to cost, when completed, not less than one hundred fifty thousand dollars ($150,000.00) •*■ * * and to be fully completed on or before the first day of January, A. D. 1911; * * *. All buildings and improvements of every nature soever erected or placed upon said premises, when commenced and completed, shall at once become a part of the realty of the lessors, without right or authority of any person or corporation to remove the same, “provided, the lessee may alter, remodel, improve, repair or reconstruct the same at its pleasure, but not so as to
“It is expressly understood and agreed (and notice is hereby given), that nothing herein shall authorize the lessee or any person dealing through with or under it, to charge said lands, or any interest of the lessors therein, or this lease, with any mechanics lien, or lien or incumbrance of any kind whatever. On the contrary, (and notice is hereby given), the right and power to charge any lien or incumbrance of any kind against the lessors, or their estate, is hereby expressly denied, and the lessee covenants that it will not permit or suffer any bill of any mechanic, labor or material man, or for any furnishings or equipments of said premises, to be or remain unpaid. The lessee shall, before commencing the erection and construction of a building on said premises, furnish or cause to be furnished a bond in a bonding company satisfactory to lessors, guaranteeing the due observance of this clause 6.”
April 15, 1910, the lease was filed for record and
Plaintiffs in error claim that they are entitled to, and may maintain their respective liens either under the provisions of § 4025 or those of § 4029, E. S. 1908.
§ 4025 gives, to the persons therein designated, “a lien upon the property upon which they have rendered
In Cornell et al. v. Barney et al., 94 N. Y. 394, 398, under a statute in substantial effect the same as our § § 4025 and 4027, materials were furnished by plaintiffs to a lessee, (Salem), for an improvement in process of construction by the latter in pursuance of provisions in his lease by which he covenanted to erect a permanent building on the demised premises of, at least, a specified value, within a designated time, and in which the lessor, (Barney), covenanted to loan a specified sum as
“Section 1 of the Lien Act, applicable to the city of New York (Chap. 379 of the Laws of 1875), provides that ‘every person performing labor upon, or furnishing materials to be used in the construction, etc., of any building, etc., shall have a lien on the same for the work or labor done, or materials furnished by each, respectively, whether done or furnished at the instance of the owner of the building improvement, or his agent.’ To give a lien under this section, the work must have been done or materials furnished at the instance of the owner of the building or the improvement, or at the instance of his agent, and the lien is upon the building or other improvement. Such is the plain language, and there is no room for construction. Here the iron was not furnished at the instance of Barney. His contract with Salem did not even require any iron to be used in the erection of the building, and it does not appear that he had anything whatever to do with Salem’s contract with the plaintiffs, or with the procurement of the iron from them, or that he knew anything about it. It is true that Salem covenanted with Barney to erect the building, and that Barney agreed to advance money to be applied toward the erection of the same, and that he was to have a mortgage on the same; yet the building was not erected for Barney, and was not, before the termination of the lease, to belong to him, and' in no proper sense could the material furnished for the same be said to be furnished at his instance. In harmony with this view is section 2*573 of the act which provides that ‘any person, who at the request of the owner of any lot, etc., grades, fills in, or otherwise improves the same, or the sidewalk or street in front of or adjoining the same, shall have a lien upon such lot for his work done and materials furnished.’ Here the word ‘request’ is used in substantially the same sense as the word ‘instance’ in the prior section, and was intended to have the same scope.
Section 1 having provided for a lien upon the building, section 3 provides for a lien upon the lot upon which the building stands, as follows: ‘The land upon which any building, etc., is constructed, etc., shall be subject to the liens if at the time the work was commenced or materials for the same had commenced to be furnished, the land belonged to the person who caused said building, etc., to be constructed, etc.; but, if such person owned less than a fee-simple estate in such land, then only his interest therein shall be subject to such lien.’ The plaintiffs can have no lien under this section upon Barney’s interest in the land, because he did not in any proper sense cause the building to be constructed. Within the meaning of this section the building must be constructed for and at the expense of the owner of the land or under contract with him. Salem caused this building to be constructed, and the plaintiffs could have a lien upon his interest in the land under his lease.”
This is not the case, however, under § 4029, coupled with § 4027. Thereunder a lien may attach to the lands of a person or his interest therein by his non-action, coupled with his knowledge that the building or structure was erected upon or removed to his land, or, being thereon, was altered, added to or repaired. Indeed, it does so attach under such circumstances, unless he is excluded from the application of the mechanic’s lien law by reason of the provisos in the section, or within five days after he shall have obtained knowledge of the work or the intention to do the same he gives notice as re
Applying the law to the facts of this case it follows that the liens sought to be established and enforced herein can not.be sustained under § 4029 as affected by § 4027. The defendants in error were under no obligation by virtue of those sections to give or post the notice therein required. They were in no wise engaged in constructing the improvement but had entered into a contract with reference thereto; and were, therefore, by the very letter of a proviso of the section not of the class to whom the section applies but of a'class expressly exempted from its terms. Moreover, the lessee was the party in sole possession of the premises and was making no improvement thereon which the terms of its lease and contract with the defendants in error did not authorize it to make. The contract here involved possesses no element of that described in § 4025, supra, as a contract between the “owner” ajad a ‘ ‘ contractor. ’ ’ By its terms nothing was to be paid by defendants' in error but the work was to be done by the lessee at its own expense; and the acts of plaintiffs in error relative to the improvement were caused by the lessee and not by the lessors. Moreover, defendants in error were not the reputed owners of the structure or improvement, but, on the contrary, the lessee, in the contracts with plaintiffs in error, was designated as such owner. It can not be seriously claimed that under the agreement the lessee contracted with the lessors to furnish materials or perform any of the labor or services
Plaintiffs in error, however, contend that the well recognized rule declared in Shapleigh v. Hull, 21 Colo. 419, 425, 41 Pac. 1108, is applicable to the facts of this case, and that their liens attach to the fee of defendants in error in the premises by virtue of the provisions of § 4025. We held in that case that where a contract of sale of real estate expressly requires the vendee to make improvements thereon, the interest of the vendor in the land is subject to the Mechanic’s Lien Law for the improvements so made. Whether the rule should apply and subject the title of the lessor to a lien where the lease requires the lessee to make permanent improvements upon the leased premises of not less than a stated value, without other conditions or limitations, has never been determined in this state. In Antlers Park R. M. Co. v. Cunningham, 29 Colo., 284, 286, counsel contended for the application of the rule but it was found unnecessary to decide the point therein. Williams v. Eldora-Enterprise Co., 35 Colo., 127, 130. That there is a clear distinction between the principles involved in the two classes of contracts is obvious. In the former the estate dealt with is one entity, and the contract of sale, containing the building requirements, can and does relate to no other thing. The vendor having required the vendee to erect the structure on the only estate that existed, and of which he was still the owner, the improvement likewise is his within the meaning of the law, and such owner’s interest in the premises, by the terms of the statute, is, therefore, subject to the lien. There being but one estate in the land and both the vendee and vendor having an interest therein, the ownership of the permanent improvement placed thereon is likewise in both and the vendee in making the
“It is insisted that the appellants’ claims are liens upon the lessor corporation’s interest in the lot, because the lessee corporation was in effect the agent of the lessor in causing the building to be erected on the lot. The evidence fails to sustain this contention, unless in a contract of lease, where the lessee is by its terms required to erect a building upon the leased premises, the latter becomes the agent of the lessor. It is well settled that such relation does not make the tenant the agent of the landlord, and that it does not give him the implied authority to create a lien upon the landlord’s interest therein for improvements made thereon, unless the lawmaking power expressly or by necessary implication enacts otherwise.”
Citing, Phillips on Mechanics ’ Liens, § § 89, 90; Boisot on Mechanics’ Liens, § § 289, 291; Jones on Liens, § § 1273, 1276; Mills v. Matthews, 7 Md. 315; Rothe v. Bellingrath, 71 Ala. 55; Harman v. Allen, 11 Ga. 45.
In Winslow Brothers v. McCully, 169 Mo. 236, while the freehold interest was held subject to the mechanic’s
And in Lumber Company v. Morris, 170 Mo. App. 212, 156 S. W. 75, based upon a statute requiring, as the ultimate foundation of the lien, a contract made with the owner of the land sought to be charged with the lien or with that owner’s agent, it was held that the statute, together with the mere covenant in a ninety-nine year lease to make permanent improvements upon the leased premises, would neither constitute the lessee the statutory nor the contractual agent of the lessor in making such improvements. The court therein, on page 216, upon the latter point, used the following language:
'“Now, can it be said that merely by reason of the fact that a lessee covenants with a lessor to make certain repairs and improvements which will become the property of the lessor at the end of the term, this necessarily makes the lessee the agent of the lessor so as to bind the latter’s freehold interest with the lien for the materials used in the improvement? If so, then no matter what is the character and extent of the improvements, nor.how strong the language of the lease denying to the lessee the authority to bind the lessor’s interest with a lien, the latter will nevertheless be bound, because the lien is a creature of the statute; and .whenever the lessee, in contracting for improvements, acts as the ‘agent’ of the lessor, within the meaning of that word as. used in the statute, the freehold is bound by the lien regardless of the inhibitory terms of the lease.”
The opinion cites with approval, Albaugh v. Litho
The covenant “involves no theory of agency, hut quite the reverse. The parties to the lease dealt with each other, not as principal and agent, but practically as adverse parties. To hold that a lessor covenanting with the lessee for the security of his interest under the lease, the payment of rent probably, should construct a building upon the land in the place of one to be demolished, would thereby and by virtue of such covenant make the lessee his agent and bind himself personally, as well as his property, for the contract of the lessee in the performance of his covenants, seems to us to be wholly without warrant either in law or in reason; we greatly question whether even the most positive legislation could impose liability upon one person for the obligation of another in such a contingency. Certainly no such liability is sought to be imposed by our mechanic’s lien law. The covenant in question is itself evidence of the intention of all the parties that the lessor should not be bound.”
Under this view of the matter it becomes necessary to ascertain: (1), whether the statute here under consideration has expressly or by necessary implication constituted the lessee the agent of the lessor and invested him with the authority to create a lien upon the lessor’s interest in the fee for improvements made upon the leased premises; or, (2) of the covenants in the lease, coupled with the other facts of the case, constitute the lessee the agent of the lessor in making the improvements for which the liens are claimed?
Mechanic’s lien statutes of our several states give but little aid in construing our own. They differ greatly in their terms and are subject to frequent amendment, and different provisions of the same statute often seem inconsistent and a lien may be sustained under one provision when other provisions would seem to negative the right thereto. Moreover, courts have too frequently ap
The distinction between the two classes of statutes and the principles involved are clearly recognized and applied in the New York decisions, in which state the different classes of statutes have been in force and their effect considered and determined. In Cornell v. Barney, supra, the two classes are considered and the effect of each clearly stated and announced, and our conclusions are in conformity therewith. That case was under a contract statute of that state, being § 1 of Chap. 379, Laws of 1875, while Burhitt v. Harper, 79 N. Y. 273, and Otis v'. Dodd, 90 N. Y. 336, were under statutes of the other class, as was that of Jones v. Menhe, 168 N. Y. 61, 60 N. E. 1053, relied upon by plaintiffs in error herein. Indeed, in Schmals v. Mead, 125 N. Y., 188, 191, 26 N. E. 251, 252, which was under a permission or knowledge statute, and which involved permanent improvements made by the lessee under a covenant in the lease, it is said: “Under the statute which formerly regulated mechanic’s liens in the city of New York, it is no doubt true that parties, situate as the respondents in this case are, could not have acquired any lien, as it was then necessary to show that the labor was performed or the materials furnished by the party claiming a lien under, or by virtue of, some agreement or contract between him and the owner of the land, and hence the numerous cases decided under the statute, as it then stood, have no application to this case.”
“So that in order to make such covenant (to build by the lessee) constitute an agency between the lessor and lessee we are necessarily bound to look at the facts to determine whether there was an agency or not. If on account of the shortness of the lease, the extent, cost and character of the improvements, or other facts in evidence, such as the participation by the lessor in the erection or construction thereof, it can be seen that the improvement is really for the benefit of the lessor and that he is having the work done through his lessee, then it can be said with justice that the lessee in such case is acting for the lessor. But, if the facts do not show this, it would seem to be untenable to say that the mere inclusion in a lease of a covenant to improve and repair on the part of the lessee will create the relation of agency between the tenant and the landlord, especially where the tenant is to do the work at his own expense and is expressly denied any authority to bind the landlord."
Lumber Co. v. Nelson, supra, holds that the fee of the lessor is bound by the lien based upon , an improvement made by the lessee pursuant to a covenant in the lease. This case, together with the other Missouri cases and certain Illinois cases, in which very broad language was likewise used, are reviewed and explained in Lumber Co. v. Morris, supra, pp. 219-222, as follows:
“Passing to our decision, we find that every one of
In the cases of Dougherty, etc., Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405, and Curtain, etc., Co. v. Churchill, 126 Mo. App. 462, 104 S. W. 476, the lessee was bound to change a hotel into a theater at an expense of $20,000 and the property became the lessor’s at the end of ten years. Besides, the lessor obligated the lessee to build and placed no restriction on his authority to bind with a lien. And the court held that presumptively the lessor made the lessee his agent to bind the whole property for the improvements. But in the ease now before us the clause saying the lessee shall have no such authority takes away any such presumption.
In the case of Winslow Brothers v. McCully, 169 Mo. 236, 69 S. W. 304, the court bound the freehold interest because the evidence showed that the owner of the fee was really having the work done by the lessee as a mere straw man. On page 248 the court says the lessee was in reality the alter ego of the lessor, the Van Raalte Investment Company. And on page 244 the court says the mere fact ‘that the tenant has contracted with the owners to make certain improvements on the leased premises, does not make the land or the landlord’s interest in the land subject to a mechanic’s lien. For in such cases the tenant acts for himself and is not the agent of the owner.’ In this case also the court held that it was proper to instruct the jury that if it was the intention, purpose and understanding betwen the fee owner and the lessee that the latter should complete the building for the immediate use, enjoyment and benefit of the lessor, and it was completed in pursuance to that understanding, then plaintiff was entitled to a lien against the fee.
In Crandall v. Sorg, 198 Ill. 48, 64 N. E. 769, the
The case of Carey Lombard Investment Co. v. Jones, 187 Ill. 203, 58 N. E. 347, was decided under a statute of that State which authorized a lien against a lessor’s freehold if the latter ‘authorized or knowingly permitted’ the lessee to improve the premises, a statute vastly different from ours. In-addition to the statute in that case the court held that by the terms of the lease the right of the lessee to create a lien was recognized and a provision for forfeiture was made in case any were created. Furthermore, the improvements consisted of a building to cost not less than $6000 and the lease was for only five years with privilege of the lessor to terminate 'sooner and the lessor had in fact terminated the lease and the lessor was insolvent.
We have carefully gone through all of the cases cited by appellant and find that in all of them there is either a statute which by its peculiar terms authorizes a lien against the freehold without reference to the question of agency, or the facts were such as to make the owner of the freehold directly responsible for the improvements. ■
On the other hand the principle is laid down that a provision in a lease expressly requiring the lessee to make specified improvements or repairs does not make the lessee, in so doing, the agent of the lessor so as to bind the reversion of the lessor with a mechanic’s lien therefor. (20 Am. & Eng. Ency. of Law (2 Ed.), 319; Cornell v. Barney, 94 N. Y. 394; Rothe v. Bellingrath, 71
Measuring the facts of this case by the law so ascertained, it is manifest that the judgment of the trial court is right, as the liens claimed may not be sustained under the provisions of § 4025 as affected by § 4027. The lessors neither participated in the erection or construction of the improvement nor approved the plans therefor. They had nothing to say as to the size and architecture of the building or the material of which it should be built. While it was to cost not less than a substantial, designated sum, there is no allegation nor showing that the rents reserved were greater than the reasonable worth of the vacant lots upon which the improvements were:to be constructed. If the improvements increased the value of the freehold interest, it was not primarily so but only as a future incident thereto, and the owner of the fee was not the owner of the building or structure within the meaning of the mechanic’s lien law. He would become such owner only by operation of law through the expiration or termination of the lease, or at least only when the building was “commenced and completed,” when, by the language of the lease, and not until then, it would become a part of the realty of the lessors.
However, should we assume that presumptively the lessors made the lessee their agent by reason of the covenant to build and certain other conditions in the lease, the clause therein expressly denying to the lessee the right and power to charge any lien or incumbrance of
Thus, in Cornell v. Barney, supra, it was held that when the lease was recorded and permanent improvements constructed on the leased premises by the lessee
Plaintiffs in error, however, contend that as the clause withholding from, and denying to, the lessee the power to charge the interest of the lessors with any mechanic’s lien or incumbrances of any kind, contains a covenant upon the part of the lessee that “it will not permit or suffer any bill of any mechanic, labor or material man to be or remain unpaid, ’ ’ and requires the lessee, before commencing the erection and construction of the building, to furnish a bond satisfactory to the lessors guaranteeing the due observance of the clause, that thereby the contract recognizes that such liens might accrue, be filed, and be binding against the interest of the lessors. We do not concur in this view. On the contrary, we do not think it changes in any manner the meaning of that part of the clause which limits the authority of the lessee in the premises. The lessors were certainly interested in having all bills paid to the end that the lessee’s interest in the premises be not subjected to a mechanic’s lien and a new tenancy created by operation of law through the enforced assignment of the lease. And this is clearly the purpose of the requirement in that respect.
It is not conceivable that the legislature made provision, as it did by § 4029, supra, whereby an owner could protect his interest in land against mechanics ’ liens for improvements made thereon with his knowledge but in relation to which he had not contracted, and made like provision by § 4025, supra, whereby he could, when
Judgment affirmed.
Decision en banc.
Mr. Justice Hill and Mr. Justice Scott dissent.
Chief Justice Musser specially concurred:
I agree that the judgment should be affirmed, but I rest my conclusion solely upon clause six of the lease, which is as follows:
“It is expressly understood and agreed (and notice is hereby given), that nothing herein shall authorize the lessee or any person dealing through with or under it to charge said lands, or any interest of the lessors therein, or this lease, with any mechanic’s lien, or lien or incumbrance of any kind whatever. On the contrary (and notice is hereby given), the right and power to charge any lien or incumbrance of any kind against the lessors, or their estate, is hereby expressly denied, and the lessee covenants that it will not permit or suffer any bill of any mechanic, labor or material man, or for any furnishings or equipments of said premises, to be or remain unpaid. The lessee shall, before commencing the erection and construction of a building on said premises, furnish*591 or cause to be furnished a bond in a bonding company satisfactory to lessors, guaranteeing the due observance of this clause 6. ”
If a mechanic’s lien can be fastened upon the reversionary interest of the lessors it must be that the lease made the lessee the agent of the lessors with authority to so contract with reference to the erection of the contemplated building as to bind the interest of the lessors. The agency, if any, that existed between the lessors and lessees was created by the lease. Plainly that agency did not arise from that part of Sec. 4025 Eev. St. ’08, which says that “every contractor, architect, engineer, subcontractor, builder, agent or other person having charge of the construction, alteration, addition to or repair, either in whole or in part, of any building or other improvement as aforesaid, shall be held to be the agent of the owner for the purposes of this act.” The lessee was not one of those enumerated in the statute who was to be deemed the ag'ent of the owner for the purposes of the act unless the lease created such agency. If the lessee was at all the agent it was by virtue of the lease and not of the statute. It is elementary that the authority of an agent is limited and controlled by the instrument creating the agency and that any person dealing with an agent, and having knowledge of the limitations upon the, latter’s authority, must at his peril contract with the agent within the known limits of that authority. When a lease provides that the lessee shall erect a building on the real estate and is silent as to the authority or want of authority of the lessee to bind the lessor’s interest with a mechanic’s lien, it is only by implication, if at all, that it can be said that such authority exists. No such implication can be made in this case, for clause six of the lease, expressly and plainly, in words that need no other construction than their obvious meaning denotes, withholds from and denies to the lessee the authority to bind the interest of
When the intention of the 'parties to a contract is found in a contract then it is known what the contract is. What the parties intended by clause six is obvious and plain. If the contract that the interest of the lessors should not be subject to a mechanic’s lien is valid then these plaintiffs in error were not entitled to a lien against the interest of the lessors and the judgment of the lower court should be affirmed. In order that it may be said that the plaintiffs in error had a right to mechanics liens on the interest of the lessors it must be held that that part of the lease forbidding such a lien is void and with
"While I do not express any opinion as to the constitutionality of such a statute, it seems to me that the Illinois cases, and all other authorities are to the effect that the right to contract with reference to one’s property is a property right. To say that a person cannot lease his property upon such terms and conditions as he may choose, is to restrain him of full dominion over his property, ■ and certainly any law which so restrains him beyond matters which effect the public health, safety,
Mechanics’ lien laws can be sustained only upon the theory that the lien is engrafted upon the interest of the owner because he has consented to the improvement in such a way as to permit a lien. In order that a lien may attach, the circumstances must be such as to show consent of the owner or to justify an inference of it. Wheaton v. Berg, 50 Minn. 525, 52 N. W. 926. In order to sustain a lien for the plaintiffs in error in this case, under that section it must be taken that the consent of the lessors is conclusively presumed to have been given in such a manner as would cause their interest in the property to be subject to a lien, because they failed to give the prescribed notice. In the case last cited, the Minnesota court had under consideration a section of the lien laws of that state almost identical with Sec. 4029 of our statutes, and that court struggled manfully to reach the conclusion that the section was constitu
“Those who may be engaged in contributing labor or material which go to the improvement of the land may often have reason to suppose that the wort is being carried on at the instance or with the consent of the landowner. It is important to such persons that, if possible, it be made known then if the owner’s consent be wanting, and that, therefore, they cannot subject the property to liability for the labor or material supplied by them for its improvement. Hence the statute, in effect, makes it the duty of the owner, who knows of the improvement being made, to give the prescribed notice if he would avoid the inference that it is done with his consent. From the neglect of the duty created by statute the inference follows. But it would seem to be impossible to construe this provision as making the mere neglect to give the specified notice conclusive upon the landowner in all cases. The circumstances must be such that he can comply with the statutory requirement, or he cannot be thus concluded. ’ ’
It can be added with the same degree of force that the circumstances must be such that the persons interested in having a lien attach have not already received notice that the owner’s interest shall not be subjected to a lien. The court further said that an owner who .has knowledge of the erection of the building, upon his premises may nevertheless show that he could not give the required notices and thus excuse his failure for giving them. Equally it can be said under this statute that the owner, in order to relieve his property of a lien may show that he has already given notice to that effect and that all interested did knoy that he had not consented
The Minnesota court, after showing that construing the section as conclusive against the landowner, would make it unconstitutional or of doubtful constitutionality, said:
“But some reasonable effect should be given to the statute if it be possible; and this may be done by construing the statutory presumption, which springs from the failure to give notice, as being of a prima facie nature rather than conclusive, and as imposing upon the landowner who, knowing the fact of the improvement, has failed to give the prescribed notice, the burden of relieving himself from the statutory imputation of having consented to what was being done, by proof of his inability to give the prescribed notice of his dissent, and that in fact the improvement was made without his authority or consent. As the statute was obviously intended to establish a rule of evidence, and as it cannot be sustained if the statutory presumption is to be construed as conclusive, but may be if it has the qualified effect which we have suggested, we conclude that it must be so construed. The language of the law does not forbid this construction, and there are apparent reasons which may have led the legislature to impose the burden of*598 proof on the party who has peculiar knowledge concerning the matters to which evidence is to be directed.”
From what has been said, it follows that the section furnishes a rule of evidence, by which, in the first instance, the failure of an owner with knowledge to give the notice therein specified raises the presumption that the owner consented that his property be subjected to a lien, and to overcome this presumption that the owner consented that his property be subject to a lien, he must go forward with evidence to show that he could not reasonably give the notice, or that he had already effectually given actual notice, or such constructive notice as would be given by recording a lease with a provision similar to that in clause six of the present lease.
It is held in some authorities that when contracts of sale or of lease require the vendee or lessee to make improvements that the interest of the vendor or lessor will be subject to a lien when there is no stipulation to the contrary. In Carey-Lombard Lumber Co. v. Jones, 187 Ill. 209, 58 N. E. 349, it is said:
“Similar contracts have been before the courts in proceedings to enforce mechanics’ liens, and have, without exception, so far as we are advised, been held to amount to authority or consent from the owner to a vendee or lessee to make the improvements, and, in the absence of some stipulation in the agreement to the contrary, to give a lien upon the interest of the owner for materials furnished or labor performed under contracts with the vendee or lessee.”
This opinion implies that in instances where the agreement contains a stipulation that the interest of the vendor or lessor shall not be subject to a lien such stipulation controls. The cases cited by plaintiffs in error as sustaining their claims to liens were all cases in which there was an absence of such stipulation in the agreement, or as in Illinois, in the case of a so-called lease, the court found that the relation between the par
On the other hand, in Wilkins v. Abell, 26 Colo. 462, 58 Pac. 612, there was a mining lease. The court said that by the demise the lessee acquired a qualified interest in the property which entitles him to work the same for his own benefit. In fact it may be said that a mining lease presupposes that the lessee will work the mine, else it would be of no use to him. In that case this court held that, “the lessee is in no sense the agent or superintendent of the lessor, nor is he a contractor in the contemplation of the statute.” (Mechanics’ Lien Stats.).
In Antlers Park R. M. Co. v. Cunningham, 29 Colo. 284, 68 Pac. 226, this court refused to decide whether or not the principle upon which Shapleigh v. Hull, supra, was decided would be applicable between a lessor and a lessee.
“Nor can a lien be asserted as against the lessor owner on the ground that the lessee here occupied some relation to the mine with respect to the working of it other than that of lessee. The contract of leasing did not call for the erection of any permanent improvements. Its only requirement of the lessee in respect to work was that-it should begin development work within a certain time and continuously employ two shifts of five men each. In the nature of things, a lease of a mine contemplates that the lessee must do at least ordinary development work. A mine is valuable principally if not wholly on account of the ore it contains, and to extract the same necessarily requires work to be done upon it. The work required here was merely ordinary development work, which brings the case within the holding in Wilkins v. Abell, supra. In other words, the labor performed and materials furnished by the claimants for which a lien is sought were done for and furnished to one who was in possession and developing the same whose only relation to the property, so far as concerns any requirement of work thereon, was that of a mere lessee.”
In Colorado Iron Works v. Taylor, 12 Colo. App. 451, 55 Pac. 942, Dougherty-Moss Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405, and Jones v. Menke, 168 N. Y. 61, 60 N. E. 1053, there was no stipulation that the interest of the lessor should not be subject to a lien, and
In Provost v. Shirk, 223 Ill. 468, 79 N. E. 178, there was a contract of sale and lease the same as in the former case, so that the socalled lessor and lessee were jointly
In Armstrong Cork Co. v. Merchants’ Ref. Co., 184 Fed. 199, 107 C. C. A. 93, there was a lease which provided that the improvements made by the lessee should remain his property, and the court held that the recording of the lease was notice of this stipulation. The court said:
“The record of the lease was notice to the complainant that the improvements he was placing in this warehouse remained the personal property of the lessee,*604 that they did not become a part of the realty and that Lyon’s reversion in the warehouse and the land upon which it stood were not chargeable with a mechanic’s lien for the purchase price of the work and the material it was furnishing Faxon v. Ridge, 87 Mo. App. 299, 307, and the conclusion is that the amended bill did not state facts sufficient to show that the complainant was entitled to a lien upon the interest of the lessor in the land and warehouse.”
In Cornell v. Barney, 26 Hun. 134, there was a lease from the owner in which the lessee agreed to build or cause to be built on the land a building. The lease was recorded. Suit was commenced to foreclose a mechanic’s lien against the interest of the lessor, axxd it was held that when the lease was recorded, the lien claimants were chargeable with notice of all the terms contained in the lease. In Atlas P. Cement Co. v. Main Line Co., 112 Va. 7, 70 S. E. 536, while it was held that under the Virginia statute the right to a lien would not be implied where a lessee provided that the lessor should erect a buildixxg, yet on the question of the effect of the record of the lease the court said:
“It is true, as argued, that the contract of lease required the building to be erected; but it was to be erected by the lessee, and the lessee alone, and at its cost. The lease was of recox'd and the appellants must be charged with notice of its contents. ’ ’
Undoubtedly the record of the lease was notice to the world that the intex'est of the lessor was not subject to a mechanic’s lien unless it is held that the mechanics’ lien statute repealed pro tanto the recording statute. Eepeals by implication are not favored.—Haldeman v. Colorado City, 52 Colo. 234, 120 Pac. 1041.
In Dunton v. The People, 36 Colo. 128, 87 Pac. 540, it is said.:
“If the provisions of the two statutes can be so con*605 strued as to stand together, that construction must be given them, and the former is not repealed because they are consistent, and the repealing clause only purports to repeal the inconsistent parts of the act.”
In Black on Interpretation of Laws, p. 112, it is said :
“Every new statute should be construed in connection with those already existing in relation to the same subject-matter, and all should be made to harmonize and stand together, if that can be done by any fair and reasonable interpretation, and if the new act does not expressly declare the repeal of an earlier statute, it will not be construed as effecting such repeal unless there is such a repugnancy or conflict between the provisions of the two acts as to show that they could not have been designed to remain equally in force.”
The provision in the mechanics’ lien laws, that an owner may, in a certain way, give notice tha/t his interest is not to be subjected to a lien, is not at all inconsistent with the recording statute, under whose provisions the same notice may be given in another way. The two statutes can and should be read together and both permitted to stand.
In Boyer v. Keller, 258 Ill. 106, 101 N. E. 237, there was a lease which provided that the premises were to be used only as a theater, and that the lessee would make no alteration to the building on the premises without the written consent of the lessor. The privilege to make alterations was given to the lessee and he was to pay for all made. ' The lessee made alterations which were permanent in character and increased the value of the premises. The question was presented whether sec. 1 of the Illinois Act, so far as it subjected to a lien the property of one who knowingly permitted another to contract for improvements thereon, violated the constitution of the state. The court said the section did not restrict
. “So long, however, as that contract remained a secret agreement between the lessors and the lessee, said section 1 made the lessor owners liable in case they authorized or knowingly permitted the lessee to contract for the improvement of the property without advising the contractors or material-men of the provisions of the lease and notifying them that they must deal with the lessee under its terms.”
And it was found that none of the lien claimants knew anything about the provisions of the lease. There was no claim that the lease was recorded. This case simply holds that the provision in a lease against liens that is kept secret and no notice of which is given will not save the interest of a lessor from the lien.
In Pac. S. & D. Co. v. Bumiller, 162 Cala. 664, 124 Pac. 230, 41 L. R. A. (N. S.) 296, the lease between the owners and the lessee provided that the owners should not be liable or responsible for any alteration or repair made in the building, by the lessee and that no alteration should be made without the written consent of the owners. It does not appear that any notice whatever was given of the lease and its provisions, by record or otherwise, and that case was determined as though no such notice had been given.
In Hardware Co. v. Churchill, 126 Mo. App. 462, 104 S. W. 476, there was a lease which provided that the lessee should have the right to make alterations in the leased premises and that all improvements made to him should be at his own expense and on his own account.