*1 seeking proper manner, from said but assets party proper she is not in this action. judgment hereby be and affirmed. should
Hoffman, Staton, J., C.J. and concur. Reported in 281 2d 522. N. E.
Note. — Horty William F. et Steck Co. al. v. Springfield.
Esther April 20, Rehearing May 371A50. Filed 1972. [No. denied 1,1972.] Transfer denied November McNamar, Steers, Sullivan, Klee, Arthur J. David F. Sul- Indianapolis, appellant. Lemay, livan & for Killian, Ruckelshaus, Ruckelshaus, Rex P. John C. Bobbitt O’Connor, Indianapolis, appellees. & for appeal negative judgment. J. This is an from a
STATON, Appellants, Steck William F. certain delivered Horty Springfield Appellees, site where the
materials having home Springfield, their new built Esther were was new home After the R. C. a contractor. *2 property clos- Springfields all had concluded finished and ing arrangements Com- William F. Steck contractor, with the pany, Indianap- olis, brought an Inc. filed action foreclose their liens, paid mechanic’s since the contractor had for the not Springfields’ material delivered and in installed new Defendants-Appellees, The trial home. court found for the Horty Springfield Springfield. Appellants, and Esther Wil- liam Distributing F. Steck and Indiana Inc. Com- pany Inc., judgment appealing are from this against urges appeal interpretation them. Their con- 1971, 32-8-3-1, (Burns struction of IC Ind. Stat. Ann. 43-701 § Supp.). judgment 1971 Cum. trial We affirm the court’s opinion our which follows. - Springfield
Horty Springfield and Esther entered into a construction Krachenfels, contract with C.R. Inc. on March 14, home, commonly for their new known as 1443 Greer Dell to be built on real estate in County, Marion Indiana, particularly and more described as follows: Lot 27 in Greer Dell Estates, a Subdivision Marion County, Indiana, per plat as thereof, recorded in Plat Book 29, page 429, in the office of the Recorder of Marion County, Indiana. providing among things contract other “upon com- buyers convey
mencement construction will deed to lot to contractor for the duration of said contract to be used collateral. Lot will buyers closing deeded to at of said contract.” The deed was not executed and delivered to R. September Krachenfels until C. meantime, In 1964. being while the constructed, new home was William F. Steck Company began perform services and deliver materials on began Distributing Company June Indiana perform July 27, services and deliver materials on property closing between R. C. Equitable Society and The Life Assurance taking mortgage States, the United who was a first on the estate, September 30, was conducted 1964. R. C. Krachen- closing, executed an affidavit at the inter alia fels lists oustanding claims: completed “The construction of said residence has now been property occupied and the All of the owners. paid except
labor and material claims have been the fol- lowing : Corporation Peerless $422.00 Greenwood & Marble Tile 689.45 Stonecraftsmen, 1175.45 Mart, Lumber Inc._3102.93 Co., Dorrell 155.00 Robert C. Krachenfels 2674.60 *3 mechanics, “There are no other unsatisfied claims of la- borers, contractors or materialmen for work or mate- done upon rial furnished which a lien can become said estate. purpose inducing “This affidavit made for the is of THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED proceeds premises, STATES to make a loan on said the pay against of which are to be used to claims EQUITA- property, mortgage given that this so THE LIFE BLE ASSURANCE SOCIETY OF THE UNITED upon will be a premises, subject STATES first lien said improvement to taxes and assessments. Robert C. Krachenfels”
/s/ Contrary affidavit, Company, William F. Steck Inc. unpaid $1,408.27 an had claim in the sum of and a notice of intent a to hold mechanic’s lien in this amount was filed 5, Distributing Company
November 1964. Indiana of Indi- anapolis, Inc. filed its of notice intent to hold a mechanic’s $1,681.30 lien for on October
A April 4, trial court was commenced on 1969 in an at- liens. The trial court
tempt mechanic’s foreclose on the Horty Springfield and Defendants-Appellees, found for Company, Inc. Springfield. Steck Esther William F. Indianapolis, Plain- Distributing Company Inc. as Indiana of tiff-Appellants bring appeal. this supra language 1971, 32-8-3-1, with of statute IC are here
which we concerned is: whose real estate the construction takes tractor, the owner or tence of lien of the first or furnishes on credit for such dwelling “Any acquiring notice person, firm, partnership, or a written original subcontractor, for the intended a lien delivery shall rights his upon notice construction of a legal representatives within fourteen or labor such real estate or of the condition any material, mechanic occupancy of the owner performed. delivery precedent single [14] corporation or labor and anyone days from the shall furnish said upon place to or double to the furnishing other machinery, who improve- the exis- right family upon than date sells con- ment constructed thereon.” dispute mandatory No exists that to the “owner” is notice “* * * precedent right acquiring
and a condition to the * * upon dispute a lien real estate that such There is no July the first deliveries were made June 1964 and given Horty Springfield and that no notice was and Esther Springfield during days that fourteen followed. It agreed owners were the of record when appeal were predicated deliveries made. exception under the F. statute. William Steck Indiana con- required dealing directly tend that notice is not when * * “* * * legal representatives owner or his *4 question is whether William F. Steck and Indiana were “* * * doing legal represent- business with the his or * * *” they bring atives so that can themselves within the exception. urged exception goes support
The first contention of the interpretation to the it is word “owner” as used authority paragraph Supporting four of the case statute. by Appellants cited in their brief to circumscribe the meaning statutory this 1963 is for amendment the most part early These dated back to the late 1900’s. 1800’s us, cases are of assistance but all the cited some cases distinguished easily language can statutory on the or facts being (1892), example, considered. For Carew Stubbs v. 549, 30 219, 220, agreed Mass. N. E. where the vendor $9,000.00 convey upon completion advance and to title by of the mortgage, foundation vendee in return for a agreed Massachusetts court related these facts: Hayes “Both said Carew and said commenced work under respective their February 15, 1889, contracts before when mortgage given; deed and hereinafter mentioned were but any neither of them furnished materials until after said date, being work premises, referred to done not on the —the places at the but That a certificate petitioners. of business of the said Fifth. September of lien 20, 1889, was filed on by Hayes, said to secure $288.17, the sum of claimed aas balance for labor and material, having fully not then —he completed contract, having his but received thereon $363.83 account; September on and that on 27, 1889, a certificate of lien was also Carew, filed the said to secure the sum of $815, claimed balance for both material,— labor and having he received on his $20 contract.” Applying statutory provision 1, the Pub. St. c. § court Massachusetts held: implication, “By employ Nason authorized Stubbs to the the necessary workmen procure to build house and to necessary materials; and the labor materials thus con- procured tracted for were in Pub. Nason, the consent of with- * * *1; c.St. § * * * 191, 1, provides: ‘Any “1. Pub. c. person St. § performed for whom debt due furnished, or or actually used, materials furnished and erection,
for alteration, repair building of a or structure agreement estate, by virtue of with consent of building the owner of such or structure, person or of *5 676 having authority rightfully acting for from or such owner furnishing procuring materials, or shall such building upon structure; upon lien such and the have thereof in interest of the lot of land which ” situated,
the same etc.’ is Co., significance placed by is William Steck Considerable F. Inc. mortgaged upon the fact that R. Krachenfels and his wife C. Mortgage, Howard this estate to the Central August 24, County, Indiana on 1964 before the deed was by Krachen- executed and delivered to R. C. fels, Inc., Spring- contractor. contract between expressly provide Krachenfels, fields does not and R. C. wife, that R. C. and his Krachenfels Krachenfels Etta A. right shall to encumber the real a mort- have estate with gage. inter alia It states that: Buyers pay shall to the Contractor “2. as considera- Thirty-Two
tion for said work and the sum of materials ($32,500.00), subject Thousand Five Hundred Dollars additions and deductions as hereinafter consideration shall be provided, following
paid manner: Payment $6,125.00 (Down Payment Down will be held in escrow and returned Buyers fail to obtain Mort- gage Commitment.) $26,375.00 As Per Contract “Upon deed to Buyers convey commencement of construction will lot to Contractor for the duration of said Contract Buyers
to be used as Lot will collateral. deeded at closing of said Contract. security expenditures “3. for the As Contractor’s under agreement mortgage this after a commitment if obtained completed, and house before is and the balance of the due, Buyers Contract Price promise becomes agree and promissory a conventional to execute note at the time the mortgage commitment obtained in the face amount of * * *” $26,375.00, which note shall be non-interest suggest agreement contemplate We does not such by action the contractor and his wife. We fail to see that controlling and his wife this act R. C. Krachenfels validity of the way. will not comment on We transaction. delivery deed C. Krachen of the to R. execution and Etta A.
fels, Krachenfels R. C. Inc. [not cre more than Springfields did no husband wife] Boyd mortgage.” Ferguson (1907), 169 “equitable v. ate an E. 71. Ind. N.
A contractor who title real estate for “collateral” takes paragraph not four the statute while is “owner” within of an constructing single dwelling family he or double is occupy for the former title holders who intend to single family dwelling. completed The in or double put statute the “owner” on no purpose tended of this is to outstanding that the contractor tice of all the indebtedness during building has incurred of a new home. Where the contracting estate original “owner” of real is to have an sin gle family dwelling constructed double real estate to title, only protection upaid which he holds from bills for public material and that such member of the has when settling provision account with the contractor his is this of cannot The contractor circumvent avoid the statute. having by merely prop statute the title to the intent of the during period erty placed name of in his construction. purpose happened is to avoid of the statute what has in this case. support exception contention in that
The second not the “owner” then he was Krachenfels was at R. C. “legal representative” of the least the “owner”. may “legal representative” given a restricted
The term encompasses only and administra- meaning executors 247, 251, (1891), Ewing 130 Ind. 29 E.N. Jones tors. v. Co., p. C.J.S., Legal, 754. William F. Steck 52A
Also see Distributing urge Indianapolis, Company of Indiana meaning “legal representative” has fixed no term 678 broadly They C.J.S.,
law and should be cite 52A construed. supra at which states: distinguished legal sense, “In the broad as from the sense ‘legal above, representative’ stated term has de- been meaning any person, artificial,
fined as natural or who operation place represents of law stands in the of and another; lawfully . . represents interests . one who an- whatever; other in matter ...” encompass merely This broad construction would one who is acting agent. an William F. Co., Steck Inc. conclude that: legislature obviously “The capacity meant some such as agent of equate ‘legal ... repre- ‘owner’ ... clearly
sentative’ herein and R. Inc., C. falls categor[y], within . . . . .” [such] .
We do not believe that the mechanics’ lien statute subject to a broad and liberal Our construction. Supreme Engineering Corp Court in Puritan Rob v. (1934), inson 58, 60, Ind E. 414 N. held: statute, being strictly derogation lien “The mechanics’ common are law, will be construed to ascertain who *7 provisions, within its and the burden one as- serting bring provisions.” (Cit- a lien to himself within its Mfg. Meyer ing Potter A. B. Co. v. (1909), & Co. 837; 513, 86 N. E. Ward (1910), v. Yarnelle Ind. 173 Ind. 535, 7.) 91 N. E. urged support It is further of this contention that: * * “* Legislature had in fact intended the term representative’ ‘legal to include and ‘executors admin- meaning instrators’ statute, leg- within the of this then the islature would have used the terms ‘executor’ and ‘admin- when it istrator’ wrote the statute.” argument determining The same can used for whether the legislature “legal representative” intended the term to mean “agent.” persuaded. are not We hold supra, we 32-8-3-1, construing 1971, Strictly IC enough in “legal is not broad representative” term the “own “agent” for acting clude a contractor as used “legal representative” term er.” The confined may not be the statute paragraph of fourth It is merely administrator.” meaning “executor or in its its limits of outer circumscribe neecssary for us to not meanings in possible speculate all its meaning on or to now before the cause unrelated to many fact situations varied us. the same be and should judgment the trial court
hereby is affirmed. J., Sharp, opinion; C.J., in result
Hoffman, concurs concurs. Opinion
Concurring by-the ma- Hoffman, result reached C.J. I concur in the disagree reasoning applied jority therein. opinion but with the deliv- majority opinion states that execution ery deed R. C. mortgage.” “equitable This is no more than create an
did However, the parties to the deed. con- true as between troversy party who is not a third court involves before this Krachenfels between involved in transaction Springfields. question this is the “owner” within before court is who 1, p. 963,
Paragraph Four of the Acts of ch. § furnishing Repl., 43-701, provides for Burns 1965 § delivery “owner” or labor and notice to the of “the written the existence of lien rights within fourteen [14] days from performed.” delivery the first or labor the date of delivery performed ease the first or labor In the instant July 27, 1964, appellants June and was was 1964 and request of Krachenfels. Under §43-701, furnished at August 10, *8 appellants 16, supra, until June 1964 and had Timely written written the owner. to furnish notice to perfect owner was not the notice was essential lien to Krachenfels. Springfields
During to all of the time hereinabove referred Marion by public records of were the as shown the owners County. September a deed recorded Not until was passing Springfields title from to Krachenfels. depends upon
The mechanics’ public lien statute rec- give vitality. ords A it no-lien contract effective when filed of timely record. A lien must be filed of record give it required existence. Notice lien be mailed to the by latest public address of owner shown description records. placed upon of real estate to be notice by of lien public is that shown records. en- tire legislative mechanics’ lien statute demonstrates the intent any person acquire who prop- wishes to a lien erty, depend upon must public acquiring when records enforcing their mechanic’s lien. only logical and reasonable definition of the word “owner” as person used the mechanics’ lien statute is that as shown by public to be the records.
In the instant case were the owners as public shown records, they received no notice as required by the Therefore, statute. acquired no lien was appellants herein. Reported in 281 E.N. 2d 580.
Note. — The Weatherhead Co. v. State Board
Tax Commissioners. April 20, 771A137. [No. Filed Rehearing 1972. May 30, denied February 26, Transfer denied 1973.]