9 Wyo. 326 | Wyo. | 1901
This was a suit brought to obtain judgment upon an account for materials alleged to have been furnished by the plaintiff to the defendants in the construction of a certain building, and to foreclose a mechanics’ lien upon the premises upon which the materials were used. There was a demurrer to the petition, which was overruled. The court heard the evidence and rendered judgment against the defendants in favor of the plaintiff for the amount of his claim and interest, found that the same was a lien on the premises, and decreed that they be sold unless payment of the amount should be made within sixty days. The defendants appeal to this court. Numerous errors are assigned, a part of which only it will be necessary for us to consider. No exception was preserved to the overruling of the demurrer, and that question is not before us for decision.
It is insisted that the plaintiff acquired no lien upon the premises, for the reason that he failed to comply with the requirements of thé statute in the statement of his claim, filed with the register of deeds, and especially in that it does not state the name of the owner of the property.
The requirement of the statute is that he shall file ‘ ‘ a just and true account of the demand due him, after all just credits shall have been given, which is to be a lien upon such building or improvements, and a true description of all the property, or so near as to identify the same, upon which said lien is intended to apply, with the name of the owner or owners, contractor or contractors, or both, if known to the person filing the lien.” A preceding section of the chapter provides that mechanics or other persons performing work or furnishing materials for any building or improvements shall have a lien ‘ ‘ upon complying with the provisions of this chapter.”
The lien is exclusively a creature of statute, deriving its existence only from positive enactment. It is a remedy given by law, which secures the preference provided for, but which does not exist, however equitable the claim
These particulars are all material. They are wisely provided for to enable the register of deeds to make the abstract required by the succeeding section; to give timely notice to owners that their property is sought to be charged; and to protect third persons (purchasers or mortgagees) by apprising them of the alleged claim. Beals v. Congregation, 1 E. D. Smith (N. Y.), 654; Reindollar v. Ficklinger, 59 Md., 469; Malter v. Falcon Mining Co., 18 Nev. 212; Rugg v. Hoover, 28 Minn., 407; Mayes v. Ruffners, 8 W. Va., 386; Kelly v. Laws, 109 Mass., 396.
The statement filed with the register of deeds in this case, does not set out, and makes no attempt to set out, the name of the owner. Under all the authorities, which are numerous and uniform upon the subject, the defendant in error acquired no lien. There is no allegation in the statement or in the pleadings, and it is not claimed that the owner was unknown. Upon the trial, evidence was introduced to show ownership in the defendant "Woodward. It should have been excluded, as irrelevant to any issue in the case, the defendant in error not having taken the required steps to obtain a lien, or to make any evidence admissible in support of his claim for a lien.
Counsel for defendant in error cite several authorities
But counsel for defendant in error suggest that the language of the statute is in the alternative, and that the requirement is complied with if the owner or the contractor or both be named ; that the provision is by way of permission to the person filing the account to name either or both. We are unable to adopt the construction suggested; the chapter extends its protection not only to principal contractors, dealing directly with the owner of the property, but to sub-contractors, laborers, and material men; and keeping this fact in view, any apparent obscurity, in the language employed, disappears. Where a contractor deals directly with the owner, from the nature of the case, only the name of the owner is required to be, or can be, stated. But in the case of a sub-contractor, laborer, or material man, his dealings are, or may be, solely with the principal contractor, and, in order to give notice to all parties interested, he is required to name in his statement both the owner and principal contractor, if known to him.
Our statute is taken substantially from the laws of Missouri. The supreme court of that State, in discussing it, say: “Now the law under consideration requires that the statement filed shall include a true account, with all just credits given; a description of the property, so that it can be identified, with the name of the owner or contractor, or both, if known, and that it shall be verified by affidavit. These all constitute the elements essential to securing the lien. We cannot say that one of the con
It is also urged by plaintiff in error that the personal judgment against them is not sustained by sufficient evidence. There was some conflict in the testimony, but there was evidence tending to show the following state of facts. One Langford entered into a contract with the defendants to erect a building for them, upon ground owned by Mrs. Woodward, for the sum of eight hundred dollars. That Langford foun d himself unable to obtain the necessary material, unless the defendants would provide for payment for it. That the plaintiff furnished the materials for the building upon an agreement with the defendants that they would pay him for the same out of the first money due upon the contract with Langford. The latter fell sick, and was unable to complete the building, it was completed by plaintiff with the consent and approval of the defendants, and they moved into and occupied it. This is unquestionably sufficient to sustain the judgment, and, the court below having passed upon them, questions involving the credibility of witnesses, or mere preponderance of the evidence, will not be reviewed by this court.
We find no material error in the record except as above pointed out. The judgment, in so far as it decrees a mechanics’ lien in favor of the plaintiff upon the 'property in question is reversed; as a personal judgment in favor of the plaintiff against the defendants, it is affirmed, and the judgment of the district court is modified accordingly. No costs of appeal are allowed to the defendant in error, but costs of appeal are allowed the plaintiffs in error, and are to be deducted from the judgment above affirmed.
Modified.