City Mill Co. v. Horita

OPINION OP THE COURT BY PERRY, J. This is an action to enforce a lien for $457.58 for materials used in the construction of a dwelling house erected by defendants Usui and Horita in pursuance of a contract with defendant Bradley, owner of the land upon which the building was to be erected. Defendant Beakbane is alleged to have entered into a contract with Bradley while the building was under construction for the purchase of the building and the land whereon it stood. The circuit court rendered judgment against the contractors for the amount claimed and in favor of Bradley and Beakbane in relation to the lien. The only question presented upon plaintiff’s exceptions is as to the sufficiency of the description of the property, against which the lien is claimed, in the notice of lien filed as required by law in the office of the clerk of the circuit court of the circuit in which the property is situated. In the opening paragraph of the document so filed the plaintiff gives notice that he claims a lien “upon that certain piece or parcel of land situate at Palolo Valley, Honolulu aforesaid, known as Lot 8, Block 103, Palolo Tract, on a map or diagram of said tract filed in the office of the Registrar of Conveyances at Honolulu in Liber 252 on pages 327-330, together with the — 587 — buildings, improvements and appurtenances tbereon, for tbe sum of $457.58 for materials furnished by tbe claimant above named at tbe special'instance and request of I. Usui, sub-contractor above named, said materials to be used in tbe construction of a certain one-story building built and constructed upon said premises.” Then follows" a statement of tbe substance of tbe contract between tbe contractors and Bradley and tbe allegation that tbe contractors purchased from plaintiff certain materials which were subsequently used in tbe construction of tbe building mentioned and that tbe building was completed September 29, 1911; that on September 17, 1911, defendant Bradley “entered into a certain written agreement of sale with one Walter Beakbane, one of-the owners above named, wherein and whereby said Walter H. Bradley did agree to convey to tbe said Walter Beakbane tbe premises hereinbefore mentioned and described, together with tbe building tbereon constructed with tbe materials furnisbed by tbe claimant herein as aforesaid, for and upon tbe full payment by tbe said Walter Beakbane of a certain consideration to claimant unknown, and tbe said Walter Beak-bane has not fully paid to tbe said Walter H. Bradley tbe full consideration or purchase price in said agreement named, nor has tbe said Walter H. Bradley, conveyed tbe same premises to tbe said Walter Beakbane.” Tbe concluding paragraph of tbe notice is as follows: “Wherefore, by reason of tbe premises and under and by virtue of tbe laws of tbe Territory of Hawaii, tbe claimant herein claims a lien for tbe sum of $457.58 upon tbe building or structure aforesaid, and also upon said Lot 8, Block 103, Palolo Tract, Honolulu aforesaid, and all tbe right, title and interest, reversion, claim and or demand of tbe said Walter H. Bradley and Walter Beakbane, owners aforesaid, therein.” This notice was filed on November 3, 1911. An amended description contained in plaintiff’s amended declaration- filed October 30, 1912, is not here considered, in view of tbe statutory provision that “tbe lien shall continue for forty-five days, and no longer, after tbe completion of tbe construe — 588 — tion or repair of the building, structure, railroad or other undertaking against which it shall have been filed, unless the same shall have been satisfied, or proceedings commenced to collect the amount due thereon by enforcing the same.” R. L., §2174,-as amended by Act 97, L. 1909. Defects in the notice cannot be cured by amendments made after the expiration of the period named in the statute. Undisputed evidence adduced at the trial disclosed the follow7ing facts; that prior to the execution of the contract for the erection of the building Bradley, being the owner of the two adjoining lots numbered respectively 8 and 10 in Palolo tract, Honolulu, and each lot having a frontage of 75 feet on the street and a depth of 200 feet, sold to one Eieldgrove an L-shaped piece of land including the portion of lot 8, with a frontage of 50 feet, not adjoining lot 10 and the rear portion of lot 10 and of the remainder 'of lot 8, — thus reserving to himself the front portion of lot 10 and of the adjoining 25 foot strip of lot 8, a total frontage of 100 feet. Around the portion so reserved by Bradley a fence was erected and it was upon this reserved portion that the building contracted for was constructed. The structure was 36 feet square and stood in part upon lot 10 and in part upon lot 8, the part upon lot 8 being about 9 feet in width. Upon Eieldgrove’s portion of lot 8 stood at the date of the filing of the notice another one-story frame building. The modern tendency is undoubtedly towards a liberal enforcement of laws giving mechanics and material-men a lien upon property made valuable by their labor and material and therefore towards a liberal construction of descriptions, in the notices of lien, of the property against which the lien is sought. Technical accuracy of description is not required. Looseness of description is condoned, often on the theory that the statutes contemplate that the claimants will prepare their own papers. It has been said that “if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty to the — 589 — exclusion of others, it will be sufficient” (Phillips, Mech. Liens, §379) ; that “only such mistakes as are calculated to mislead' subsequent purchasers or creditors 'should destroy the claim” (lb., §383) ; that “if by rejecting what is a false description enough remains to identify the property attempted to be described the description, is sufficient under the statute” (McHugh v. Slack, 11 Wash. 370) ; and that “the essential thing is that it be described so that it can be identified” (Pavement Co. v. Norwegian Seminary, 43 Minn. 452). In the application of these principles, however, the courts appear not to be always in accord. Each case is to be determined in view of its own facts; but much likewise depends upon the particular provisions of the statute in the jurisdiction in which the case arises. Statutes differ greatly in different jurisdictions. As a general rule they do not require that the notice should describe the land. 27 Cyc. 122. In Missouri, for example, it is sufficient if the notice identifies the building or other improvement. Ib., n. 55; and Sawyer v. Clark, 172 Mo. 588, 595. Some statutes permit a lien upon the building alone, as well as upon the land and building. See, for example, Kezartee v. Marks, 15 Oregon 529, 536, and Hannah & Lay Co. v. Mosser, 105 Mich. 18, 31. Obviously in those cases in which the lien may attach to the building alone and in which misdescription, therefore, of the land is immaterial provided there is a sufficient description of the improvement, the test of the sufficiency of the description may differ very greatly from that which would be applicable if the lien could be enforced only against the land and the building jointly. Because of these distinctions and the differences in the facts adjudicated cases cannot be of much assistance in the determination of the case at bar. Under our statute (E. L. §2173) a lien cannot exist or be enforced against any of the structures there named separately from the interest of its owner in the land upon which it is situated (Emmeluth v. Au In Kwai, 20 Haw. 180) and the notice must contain a description of the property “sufficient to iden — 590 — tify the same” (R. L., §2174, as amended by Act 97, L. 1909). Tbe question in. the case at bar is, therefore, as to tbe sufficiency of tbe description of tbe land and tbe building and not of tbe building alone. In view of tbe provision that tbe notice shall be filed in tbe office of the clerk of tbe circuit court, it was evidently tbe intent of tbe legislature that tbe description should be such as to enable not only tbe owner but also prospective purchasers and creditors to identify tbe property. The description contained in the notice filed by plaintiff is upon its face unambiguous. It relates to lot 8 exclusively. The building erected by tbe contractors is clearly stated to be situated on tbe “said premises” and on tbe “premises hereinbefore mentioned,” meaning lot 8 and none other; and there was a building on lot 8 of tbe same general nature as that described. Any intending purchaser searching for notices of liens on lot 10 would find no warning in this document of a claim against lot 10, or against any building on that lot. Tbe claim is clear and precise that tbe land sought to be charged is “Lot 8, Block 103, Palolo Tract” as shown on a map filed in “Liber 252 on pages 327-330” in tbe office of tbe registrar of conveyances. Tbe reference to tbe unrecorded agreement of sale and purchase, between Bradley and Beakbane, of “tbe premises hereinbefore mentioned and described” and of “tbe building thereon constructed” by tbe contractors, is insufficient to show that a lien was claimed.against lot 10 on which tbe building was so constructed, particularly in view of tbe fact that tbe claimant in tbe concluding paragraph summarizes bis claim as being against “tbe building or structure aforesaid and * * * said Lot 8, Block 103, Palolo Tract.” Tbe enclosed lot upon which tbe bouse was built is not mentioned in tbe instrument. Neither in tbe last paragraph nor elsewhere in tbe notice is a lien claimed, following tbe provision of tbe statute, in tbe land on which tbe building is situate. Had there been a general claim to that effect, perhaps tbe notice could have been construed to include a claim against lot 10. Tbe claimant having clearly designated — 591 — lot 8 as tbe land against which he sought a lien, his claim cannot be extended by construction to include lot 10. F. Schnack for plaintiff. J. W. Bussell (Thompson, Wilder, Watson & Lymer on the brief) for defendants. A lien does not exist in plaintiff’s favor against lot 8 because the building is substantially upon lot 10 and only to a «light extent upon lot 8. The statute grants a lien only against the land “upon which the same” (the structure) “is situated.” So, too, the lien is given only “upon such building” as a whole. The statute does not contemplate a lien upon a part of the building or the severance, upon execution, of a part from the remainder. The exceptions are overruled.