Filer & Stowell Co. v. Empire Lumber Co.

Bleckley, Chief Justice. A part of section 1979 of the code reads as follows: “All mechanics of every sort, who have taken no personal security therefor, shall, for work done and material furnished in building, repairing or improving any real estate of their employers; all contractors, material men, and persons furnishing material for the improvement of real estate; all contractors for building factories, furnishing material for the same, or furnishing ma [658] chinery for the same; and. all machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up in any county of this State, any steam-mill or other machinery, or who may repair the same; and all contractors to build railroads, shall each have a special lien on such real estate, factories and railroads.” And section 1985 reads thus: “All persons furnishing saw-mills with timber, logs, provisions, or any other thing necessai-y to carry on the work of saw-mills, shall have liens on said mills and their products, which shall, as between themselves, rank according to date, and the date of each shall be from the time when the debt was created, and such liens shall be superior to all liens but liens for taxes, liens for labor, as provided forin sections 1974,1975 and 1984, and to all general liens of which they have actual notice before their debt was created, to which excepted liens they shall be inferior.” The court below held that the lien claimed in this case, the same being in favor of a machinist, for furnishing machinery for a steam saw-mill, to improve or enlarge the mill and keep it efficient, does not fall within the latter section but could exist under the former section only. With this opinion we agree. The former section treats the mill as realty; the latter treats it as personalty. Liens arising under the former must be recorded. Such is the express requirement of §1980. Liens arising under the latter need not be recorded and may be foreclosed under §1991 against the mill as personalty. The lien claimed in this case not having been recorded, within the time prescribed, is not good under §1979. Failure to claim and record it could not be excused by the fact that the premises and mill on which the lien would have attached were put into the hands of a receiver by judicial proceedings before the time for recording had expired. The custody of the property by a receiver would be no impediment to claim [659] ing and recording -tbe lien and is wholly irrelevant as a reason for not doing so. The code is express that to-mate good the liens specified in §1979 they must be created and declared in accordance with certain provisions, one of which is the recording of the claim of lien within thirty days (now three months by the act of 1889) after the completion of the work or after such material or machinery is furnished. Code, §1980, as amended by Acts 1889, p. 106. For a construction of the phrase “ any other thing necessary to carry on the work of saw-mills,” as contained in §1985, see the case of Balkcom v. Empire Lumber Co., decided this term. (Ante, 651.) That case was a part of the same general litigation out of which the present arose, and the two cases were considered and decided at the same time. Judgment affirmed.