23 Cal. 208 | Cal. | 1863
delivered the opinion of the Court—Norton, J. concurring.
This is an action to enforce a mechanic’s lien, notice of which was filed in the Eecorder’s office, November 24th, 1860, on a quartz mill owned by the defendant Moore, in Amador County, for machinery used in the construction of the mill. Morgan and Weatherwax came in under the published notice, and filed liens on the same property for lumber furnished and labor performed on the mill. Brown and Andrews were made parties, they claiming a lien thereon under a chattel mortgage, executed by Moore to one Mosick, and by Mosick assigned to them. This mortgage bears date October 22d, 1860, was recorded the same day, and includes the quartz lode and the quartz mill then in process of erection, with the boiler, engine, and other machinery used in the mill. Lambard is also made a defendant, he claiming a lien under a chattel mortgage on the 'boiler, engine, and fixtures connected therewith, executed by Moore on the sixteenth day of November, 1860. The property described in this mortgage was then in Sacramento, where the mortgage was executed, but was afterwards removed to and put up as a part of the fixtures and machinery of the quartz mill. This mortgage was duly recorded in Sacramento County, November 17th, and in Amador County, November 19th. The case was tried by the Courtj and a decree rendered that the claim of Lambard
The first point urged is, that the notice of lien filed by the plaintiff Tibbetts, does not correctly or sufficiently describe the property sought to be charged with the lien. It is described as a “ Quartz mill, being at or near the Town of Scottsville in Amador County, known as Moore’s New Quartz Mill.” There was no evidence that
The land around the mill is described in the complaint and notice of lien as foEows: “ With such convenient space of land around the same as inay be required for the convenient use and occupation thereof.” It is objected that this description is also insufficient. Sec. 4 of the Mechanics’ Lien Law (Wood’s Digest, 538) provides that “ the land upon which any budding or superstructure shaE be erected, together with convenient space around the same, or so much as may be required for the convenient use and occupation of the premises, shaE also be subject to the Een,” etc. The notice and the complaint in this case foEow the terms of the statute, and are sufficient as a matter of description. In cases of this kind it is proper for the Court, by its decree, to define the amount and extent of the land connected with the miE which is properly subject to the Een. The decree in this case, however, does not do so; and this is also urged as an objection. Such an omission wiE not invaEdate the decree; but it renders it doubtful whether a purchaser under it wiE acqmre any land beyond that covered by the buddings. That question, however, is not properly before us; and it is not necessary to determine it. Eo objection of this kind seems to have been raised in the Court below by demurrer or otherwise; nor does it appear that the appellants requested the Court to define in its decree the extent of space around the miE to be subjected to the Een. Under such circumstances, they wiE be deemed to have waived such objections.
The next point is, that none of the materials furnished by the plaintiffs had been delivered at the mill at the time the mortgage held by the appeEants was executed and recorded, and it is contended, therefore, that the plaintiff’s Een did not attach to the property until after the mortgage. The statute then in force provided that “ the Eens created by this act shaE be preferred to every other Een or encumbrance which shall have attached upon the said property subsequent to the time at which the work “was commenced, or the first of the materials were furnished; and also to aE mortgages
The next questions to' consider are those relating to the lien of Morgan, one of the parties to the action. It is insisted that the petition filed by him, asserting his claim and lien, does not state facts sufficient to constitute a cause of action, and therefore the Court erred in admitting any evidence in support of the claim over the objection of the .appellants. The proceedings in actions to enforce mechanics’ liens are special, and peculiar in them character. Under the seventh section of the act in force at the time this action was commenced (Wood’s Dig. 538, 539), it was not necessary for the lienholder who commenced the action to make other holders of liens under the statute, parties by name, but they were brought in by a published notice, “ notifying all persons holding or claiming liens on said premises, to be and appear in said Court, on a day to be therein specified, and to exhibit then and there the proof of said liens.” 11 On the day appointed, the Court shall proceed to hear and determine - the said claims, in a summary way, or may refer the same,” etc. It will be seen that the proceedings are summary in them character, and differ entirely from ordinary actions. The exhibit of proof of liens by lienholders coming in under the notice, is not governed by the sections of the Practice Act relating to interventions; and the papers filed by them, exhibiting their claims, are not governed by the strict rules relating to
The notice of lien filed by Morgan sets forth that the lumber was furnished to “ Moore & Co.,” and it is objected that the lien cannot be enforced against property owned by Moore, and not Moore & Co. The material facts to sustain the lien are, that the materials were furnished for, and were actually used in the construction of the building on which the hen is claimed. Whether the owner purchased the materials in his own name or in the name of a firm of which he was a member, can make no difference so far as relates to the lien, which is the only matter the appellants have a right to contest.
The notice filed by Morgan includes claims for lumber furnished for the construction of the quartz mill, and also a blacksmith shop, and a building erected over the shaft of the mine. It is contended that by filing his notice in this form, he loses ah hen on either. Whether, in a case hke this, where all the buildings, though separ rated from each other, form one establishment, and are ah used, and are necessary in conducting the one business carried on, the hen of the mechanic or material man can be held to include ah the buildings in one claim and hen, it is unnecessary to determine. The Court, in this case, in its findings separated the amount due for the materials furnished for the construction of the quartz mill proper from that for the other buildings, and rendered its decree accordingly. In this, no error was committed to the injury of the appellants.
The next class of objections to be noticed are those which relate to the Lambard mortgage. The mortgage held by the appellants is dated October 22d, 1860, and was recorded in Amador County the same day. It was executed under the Chattel Mortgage Act (Wood’s Dig. 108), and the property mortgaged is described as follows: “ All that certain piece or parcel of land or lot of ground,
The Lambard mortgage is dated November 16th, 1860, and was duly recorded in Sacramento County, where the property then was, November 17th, and in Amador County on the nineteenth of November. It was executed in pursuance of the provisions of the same Chattel Mortgage Act, and the property mortgaged is described as follows: “ One steam engine of the following description : twelve-inch cylinder, twenty-four inch stroke; one heater, one force-pump, one wheel and pinion, and one steam-gauge. Also, one steam boiler of the following description: twenty feet long, and forty inches in diameter, having five nine-inch flues.” Soon after this mortgage was given, the property described therein was removed from Sacramento to the quartz mill, and put up therein, for the purpose of running the machinery thereof. The appellants claim that when this property was put up in the quartz mill it became a fixture and part of the realty; that it became thereby a portion of the property covered by them mortgage; that their mortgage, being prior in time to that of Lambard, it became a hen thereon prior to that claimed by Lambard ; therefore the proceeds of the sale thereof should be applied first to the satisfaction of their debt, and that the Court below erred in giving priority to the hen of Lambard.
But it is equally clear that their mortgage was no lien thereon before the property was so attached. We" are not aware of any rule of law or equity which will divest the defendant Lambard of thei priority of lien lawfully acquired by him upon the property described in his mortgage, by any such means as are shown in this case. The cases referred to by the appellant merely sustain the principles above referred to as already decided by this Court, but they have no application to the present case. The cases of Winslow v. The Merchants’ Insurance Company (4 Metcalf, 306), and The Union Water Company v. Murphy’s Flat Company (22 Cal. 620), were very similar in principle. In both cases, fixtures and improvements had been put on the real estate after the first mortgage, but before the second had been executed. In both cases the real estate itself was the subject of the mortgages, and it was held in both cases that the fixtures became subject to the first mortgage as soon as they were attached to the realty, and therefore the first mortgage was a prior lien. But those cases differ from the present "in this: that here there was a valid subsisting mortgage upon the engine and boiler before the appellants’ mortgage became a hen thereon; and although the Lambard mortgage bears a later
Both mortgages are executed and recorded as chattel mortgages, under the statute; and treating them in that character, there can be no doubt that the Lambard mortgage has priority over the other so far as relates to the property included in it. The provision in Sec. 2 of that act, respecting the recording of the mortgage in the county where the mortgagor resides, and the property is located, and the proviso respecting the removal of the property to “ a locar tion for use,” and the time allowed for recording by Sec. 7, clearly contemplate that property of the kind described in the act is to still remain subject to the mortgage lien, though its location be changed, and it be put to use in connection with other property. Much of the property covered by the act, such" as saw mill and • grist mill machinery, steam boilers, steam engines, machinery, and buildings connected with quartz claims, etc., are of such a character that they are of little or no practical use until they are secured by attachment to real estate in the nature of fixtures, and the evident object and intent of the statute, to protect the mortgagee of such property, would be entirely defeated by holding that a mortgage lien thereon, before becoming fixtures, would be defeated and divested, or subordinated to another mortgage upon becoming a fixture. The separation and removal of the boiler and engine from the realty will leave the latter in no worse condition than it was before they were put up; so that affords no just ground for a different rule. There is no ground for saying that there has been a confusion of goods by attaching the property to the realty.
The judgment is affirmed.