40 W. Va. 698 | W. Va. | 1895
Lead Opinion
This is a suit in equity brought in the Circuit Court of Mason county on the 19tk day of December, 1892, by plaintiff
On the 10th day of May, 1893, four of the defendants suggested the non-residence of plaintiff, and required security for costs; and, the security having been given, they demurred to plaintiff’s bill. The court sustained the demurrer, and plaintiff desiring to amend, on its motion the cause was remanded to rules for that purpose. The amended bill having been filed, and the cause again on the court docket for hearing, the same four defendants demurred to the amended bill. The court, on December 19,1893, sustained the demurrer, and the plaintiff declining to further amend, the bill and' amended bill were dismissed, with costs, and this appeal was allowed the plaintiff. The grounds of demurrer are:
First. The bill and amended bill are multifarious.
Second. Plaintiff does not, by its pleading, show itself to have a valid mechanic’s lien; has not complied with the statute, and therefore has nothing that fastens the claim to the property for its satisfaction; is a mere creditor at large, with np standing in a court of equity as a lienor against the property in question.
In our chancery practice it is usual in an amended bill to introduce supplementary matter, if necessary, without any additional designation of the bill itself. The bill is taken for what it shows itself to be, without regard to the name that may be given it. The plaintiff may, at any time before or after the appearance of the defendant, in the vacation of the court, file in the office an amended bill or supplemental bill, and have a summons b> answer it. But if the court shall be of opinon that the same was improperly filed, it will dismiss such bill, at the costs of the plaintiff. This is done on motion, not by demurrer.
The scheme of the original bill is: That'plaintiff has a mechanic’s lien on the real property of the Point Pleasant Furniture Company for one thousand seven hundred and twelve dollars and fifty cents, duly recorded on July 12,1892, but that the furniture company had, on the 11th day of December, 1891, by deed of trust of that date, conveyed its
This did not have the effect to render the bill multifarious. I know of no reason why plaintiff might not properly have obtained against its debtor the furniture company a judgment 'at law for its claim, as was done in this case. Such! was its right whether the mechanic’s lien was valid or invalid. It obtained such judgment without objection. Why should it not inform the court that it had obtained a judgment at law against its debtor for such claim, which it had been and was seeking by its original bill to enforce as a mechanic’s lien? It did not and could not affect the mechanic’s lien. It did not make it better or worse, but made its pleadings correspond with the change in fact which had taken place in regard to defendant’s account. There are several reasons why it may bé permitted to obtain its judgment at law: First. The plaintiff thereby establishes the justice of its claim, and ascertains the amount; so that there can be no claim that defendant has been deprived of his right of trial by jury. Second. It is in no way inconsistent with the lien. A party who-has a vendor’s lien may also sue and obtain a judgment at law, thus making his claim also a judgment lien. Tim'd. That this may be done is contemplated by, the statute itself, for section 12 of chapter 75 of the Code (the chapter which authorizes the creation of the lien) provides that “the court of chancery may, in addition, give a personal decree in favor
The deed of trust is an older and higher valid lien on the same property. That the plaintiff concedes, but its complaint is that the trustee made a sale improperly and illegally, to plaintiff’s injury, and it asks that such salé may be set aside, and the property legally and properly sold under the direction and supervision of the court. But if the court should hold such sale by th'e trustee to be valid, then plaintiff asks that the surplus may be applied pro tanto in satisfaction of its lien. As to this, the plaintiff alleges but one state of facts, or, if two, they are not inconsistent; and it adapts its alternative prayer for relief to meet each one of two views
Each one of these four defendants who demur is a proper party, and they have no right to complain for other people, who do not themselves complain that such other persons are not proper parties defendant. James P. Hayes is a proper party, because he was the purchaser of the property at the trustee’s sale, which plaintiff says was illegal and invalid; and which it asks to have set aside; the other three, because they are creditors by mechanics’ liens, who have been paid out of the’proceeds of such sale, whose liens are alleged to be younger and inferior in order of rightful payment to the lien of plaintiff.
This brings us to the main question discussed by counsel, does plaintiff show itself to have a valid subsisting mechanic’s lien on the.real estate in controversy? The bill must allege all the facts necessary to create the lien, for it is prarely a creation of the statute, having nothing else to stand on. This is but a special application of the universal rule that the decree pronounced must stand justified by the pleadings as well as by the proof, and here it is decided asi though all the allegations were true; for reasonable presumptions of fact, are admitted by demurrer, as well as the matters expressly alleged; but it does not admit matter of inference or argument. For example, in this case, plaintiff expressly alleges that its lien is valid; that all things required by the statute to create it were properly done and performed, averring them severally and specifically. -But this is not taken as true, for the lien itself is exhibited, and as to the construction to be put upon it, that is a question of law for the court.
A lien is said to'be the ligament which binds certain property to a certain debt or claim for its payment or satisfaction.
Themechanic’slien on buildings, etc., and the land on which they are erected, as we know it, is the creature of statute, and was unknown at common-law or in equity. Phil. Mech. Liens (3d Ed.) § 1. But soon after the adoption of the federal constitution the states commenced to pass statutes creating such liens, in order to encourage the erection of buildings, and the improvement of town lots and real estate generally. Maryland came first, with the act of December 19, 1791; Pennsylvania with the act of April 1, 1803. Our first act upon the subject was passed February 21, 1843 (Acts 1842-43, p 52). See Code, 1849 (Ed. 1860) p. 567. And for labor done and material furnished see act of 1852 (page 242) local to Alexandria. The whole subject has been of gradual growth; but it has been extended, advanced and encouraged and ■methodized until it now prevails in all states; and “while each state may have its own mechanic’s lien law, which is rarely identical in every particular with that of another, yet all of them, having the same object in view, are, in their main provisions, very much alike, and in some instances mere re-enactments of each other.” See Phil. Mech. Liens, § 8 et seq.; 2 Jones Liens, § 1186 et seq. Our law on the subject is found in chapter 75 of the Code. See. Ed. 1891, p. 652. Our first case on the general subject is Laege v. Bossieux, (1859) 15 Gratt. 83, opinion by Judge Lee, where the act is given a construction plainly intended not to restrict, but to
In this case, tbe plaintiff, for an agreed consideration and price, on tbe 10th day of June, 1892, furnished, delivered and placed on tbe premises of the Point Pleasant Furniture Company, in Mason county, W Va., certain machinery in tbe bill and proceedings mentioned and described, at tbe agreed price of one thousand seven hundred and twelve dollars and fifty cents,’ ceasing to labor, etc., on that day, and filing in tbe clerk’s office of tbe County Court of Mason county, for record, their account, on tbe 12th day of July, 1892.
By section 2 of chapter 75 it is provided, among other things, that “every mechanic * * * or other person, who shall perform any work or labor upon, or furnish any material or machinery for constructing i:' * any house * * * manufactory or other building * * * fixtures * * * or other structure by virtue of a contract with the owner or his authorized agent, shall have a lien to secure the payment of the same, upon such house or other structure, and upon ihe interest of the owner in the lot of land upon which the same may stand or to which it may be removed.” Section 4: “Every lien provided for in the second and third sections shall be discharged unless the person desiring to avail himself thereof shall, within sixty days after he ceases to labor on or furnish material or machinery for such building or other structure, file with the clerk of the County Court of the county, in which the same is situated, a just and true account of the amount due him after allow
The account filed in this case consists of an itemized statement of the material and machinery furnished and work and, labor done, with a sworn statement thereto' attached as part thereof; and the two must be read together for our purpose as parts of one whole, called by the clerk who recorded it the “mechanic’s lien.” In this case the sworn statement says: (1) There are no credits or set-offs to said account other than are stated in the account, which is just and true, and for which defendant is debtor to plaintiff; and that there remain» unpaid, after allowing all set-offs and credits, the sum of one thousand seven hundred and twelve dollars and fifty cents. (2) That the property upon which the work and labor was performed and for ■which said material was furnished, as charged in the foregoing account, and upon which it is hereby intended to take a mechanic’s lien, is situate in the town of Point Pleasant, Mason county, W. Va., being two certain lots (giving ihe number and location of each) and a certain tract of land adjoining (giving its metes and bounds) “being the same lots and tract of land conveyed to the Point Pleasant Furniture Company by the Kanawha Lumber and. Furniture Company, by its deed, bearing date on the 11th. day of December, 1S91, and of record in the clerk’s office of' the County Court of said Mason county in, Deed Book No. 51,, pp. 342 and 343, to which deed reference is hereby made.” The-just and true account of the amount due, which is required to> be sworn to and filed, cao not mean only an account past due (one on which a suit can then be maintained) but it means
Being of opinion that the plaintiff has shown a valid, subsisting méchanic’s lien on the property, it is not necessary to discuss the question whether it has also a judgment lien. This would depend on the question whether the three thousand and twenty six dollars and seventy five cents resulting from the sale under the deed of trust, and paid over by the trustee, and now in the hands of the general receiver of the court, is to be regarded as real or personal property. The general rule is that where real estate is sold under a deed of trust for the payment of the debt charged therein, the character of the property is only regarded as changed from realty to personalty, so far as may be necessaray to pay such debt, and the residue is still treated in equity as real estate. The question, however, may depend upon the provision in the deed of trust; but in this case there is none. It is silent on the
From the view of the case here expressed it results that the demurrer of the defendants the Buss Machine Works, the Lane & Bodley Company, the Laidlaw & Dunn Company, and James P. Hayes to plaintiff’s amended bill should have been overruled.
' Therefore the decree of September 19,1898, sustaining the demurrer and dismissing plaintiff’s bill and amended bill is reversed, and the cause is remanded for1 further proceedings to be had therein. Reversed and remanded.
Rehearing
ON REHEARING-.
It is insisted by counsel for appellee that the claim of mechanic’s lien of the Moore Carving Machine Company is clear-lyinsufficient, and invalid as a lien, because there is in the affidavit no positive designation of the owner of the property, and because the account filed therewith is no meagre of explanation and barren of statement as not to aid the affidavit, when used in connection therewith, on the question of ownership. The answer to this is that the United States Blowpipe Company is the only plaintiff, and its bill'was finally dismissed by the court below on demurrer, and the sufficiency of its
As to the validity of the plaintiff’s lien — the only one before us on this demurrer — we need only say that a re-examination of - the record and authorities has led us to our original conclusion.