Thornton v. Hallam

129 P. 1046 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

“Any person or persons who shall hereafter clear any land or improve the same by ditching, diking or tiling the same at the request of the owner or person in the lawful possession of the same shall have a lien on the said lands so improved or cleared for his wages and charges for the said service, which lien shall be preferred to every other lien, mortgage, or incumbrance of a subsequent date.” Section 7439, L. O. L.

“It shall be the duty of every person claiming the benefits of this act to file with the county clerk of the county where the land is situated within sixty days after the completion of the clearing or improvement of any lands provided for in Section 7439 or after the completion of any contract to clear or improve any land in this act provided, a bill of the wages due such person for such service and a statement of the contract, the name of the contractor together with a sufficient description of land by metes and bounds or legal subdivisions. The said bill so filed shall exhibit the total amount of his demand, after dividing (deducting) all set-offs and counterclaims, and shall be verified by the oath of such claimant that the same is true and an actual, bona fide, and existing debt.” Section 7440, L. O. L.

1. One seeking to take or charge with a lien the property of another with whom he has not contracted must be able to show a strict compliance with any statute giving such privilege. The statutes conferring a lien upon property for services have always been strictly construed, being in derogation of the common law. Kezartee v. Marks, 15 Or. 529 (16 Pac. 407); Pilz v. Killingsworth, 20 Or. 432 (26 Pac. 305); Gordon v. Deal, 23 Or. 153 (31 Pac. 287); Rankin v. Malarkey, 23 Or. 593 (32 Pac. 620).

2. The contracts which both parties admit constituted the rule governing the relations between the owners and Hallam show that the second described tract in the complaint was to be taken by Hallam as part compensation for clearing the larger tract mentioned in the contract. Nothing is said in those contracts about Hallam taking possession of the land which he was to receive as compensation. The defendants contend that under these circumstances, at least as to the smaller tract described in the complaint, Hallam was not in lawful possession of the same so as to give him authority to contract with the plaintiffs so as to bind the title of the owner in fee. The mere fact that a contractor goes upon land for the purpose of performing services thereon for the owner does not give him possession. It is manifest that Haliam could not have maintained ejectment against Chap-, man and Sherrard to recover possession of any of the land described in the complaint. He stood in no better relation to the owners in fee than any employee or servant of theirs, and therefore is not a person in lawful possession of the land in that sense which would authorize him to contract with a stranger so as to charge owners of the fee or affect their estate.

3. The weight of authority is that ejectment will not lie against a mere servant of the land holder. Polack v. Mansfield, 44 Cal. 36 (13 Am. Rep. 151); Chiniquy v. Catholic Bishop, 41 Ill. 148. The reason is that in such cases the possession of the servant or the employee is the possession of the employer. Liens of the kind under consideration are plainly distinguishable from those arising under the general law relating to mechanic’s liens set out in Section 7416 et seq., L. O. L., providing that several classes or persons therein named “shall have a lien upon the property for the work or labor done * .* or material furnished at the instance of the owner of the building or improvement or his agent; and every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration or repair in full or in part of any building as aforesaid shall be held to be the agent for the purposes. of this act.” In the statute under which this suit is instituted there is no provision for making a contractor the agent of the owner. The only one entitled to charge the lands with a lien is the owner or person in lawful possession of the same.

4. Again, it will be observed that the tract first described in the complaint has a description which does not close, and hence is vague and unintelligible. It does not constitute a description of lands by metes and bounds or by legal subdivisions as the statute expressly requires. Although in Bogard v. Barhan, 52 Or. 124 (96 Pac. 673: 132 Am. St. Rep. 676), this court held that specific performance would lie to compel the conveyance of property described by certain names, and that parol testimony would be received to identify such property so as to enforce specific performance, yet in that same case it was held in an opinion by Mr. Justice Eakin that a description by metes and bounds which would not close was void. More than that there was no issue raised on the subject of mistake, and, even if there had been, there could not have been any ground for calling it a mutual mistake which equity would correct, for the plaintiffs were proceeding at their peril, and not by virtue of any contractual relation with the defendant owners.

5. It appears in the testimony without dispute that the labor performed by the plaintiffs on the five-acre tract described in the complaint was done at the instance and request of Hallam for his own purposes, and that this five-acre tract was not included or intended to be included for clearing in the contracts between Hallam and the defendants Sherrard and Chapman. Excluding the first-mentioned tract, as we must under the authority of Bogard v. Barhan, 52 Or. 124 (96 Pac. 673: 132 Am. St. Rep. 676), the lien must fail even if the five-acre tract were properly included within the claim, because the statement prescribed by the statute must be true and for an actual bona fiáe existing debt for labor performed on the land sought to be charged at the request of the owner or person in lawful possession. As to the five-acre tract, the claim is not true, because it seeks to charge that tract with clearing done elsewhere, and must fail for that reason as well as the one already noted.

The decree is reversed, and the suit dismissed.

Reversed: Suit Dismissed.