Welch v. Porter & Co.

STONE, J. The present case arises under the act “ To establish and regulate liens of mechanics and other persons,” approved March 6„ 1876. — Pamph. Acts, 165; Code of 1876, §§ 3440 to 3461, inclusive. Section 3442 declares, that the lien conferred by the statute “ shall attach, and be preferred to all other incumbrances which may be attached to or upon such buildings, erections, or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” Section 3444 prescribes the time and manner in which such claim of lien shall be preferred — namely, by filing with the judge of probate “ a just and true account of the demand due him, after [230] all just credits have been given, which is [claimed] to be a lien upon such building or other improvements, or upon the unpaid balance in the owner’s or proprietor’s hand's, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply; . . . . which statement shall, in all cases, be verified by the oath of the claimant, or some other person having knowledge of the facts.” The time limited for thus filing the claim with the judge of probate is six months after the indebtedness has accrued, if the claim be by the original contractor; thirty days, if by a journeyman or day laborer; and four months, if by any other person seeking to obtain the benefit of the provisions of the act. This section then proceeds to declare, that the “statement of account and description, when so filed, shall be a lien upon the building, or other improvements, with all the rights and privileges under this chapter, from and after such filing.” It will be observed that, under the first named of these sections, the lien given is preferred to all other incumbrances which may be attached, “ subsequent to the commencement of such buildings or improvements.” This language, if it stood alone, is simple and explicit, and would have no margin for construction. It fixes a definite time when the lien shall attach — the commencement of the building or improvement. Under the other, it is declared, that the “ statement of account and description; when so filed, shall be a lien.” This filing may be four or six months after the indebtedness» has accrued, which will generally be at the completion of the building or improvement. Construed alone, this language would import that the lien does not attach until the claim is filed; for, inclusio unius est exclusio alterius. Such is the implication when language such as this, unexplained by anything precedent or subsequent, comes up for interpretation. But both the clauses we are commenting on are found in one and the same statute, enacted at one and the same time. It is our duty to harmonize these provisions, if we can, and to give to each word and sentence its due weight in arriving at the legislative will. If we hold that the language employed in section 3444 means that the lien does not attach until the claim is filed, we nullify the provision in section 3442, which gives a preferred lien from the commencement of the building or improvement. This, we think, we are forbidden to do. We feel it our duty to give to section 3442 the effect its language expresses, and hold that the lien attaches from the commencement of the building or improvement. This lien, however, is liable to be defeated and lost, if the claim be not verified and filed with the judge of pro [231] bate within the time prescribed by section 3444 of the Code. "When so verified and filed, the lien becomes complete. Till then, it is inchoate and defeasible. This gives some operation to that part of section 3444 we have been commenting ou, and is the best solution we can give of the apparent repugnancy in the two provisions of the statute. 2. The question remains, who are entitled to this preferred lien, which dates from the commencement of the building or improvement ? We do not doubt that a contractor, who, by the terms of his contract, binds himself to do the labor, or to furnish the materials and do the labor, acquires a lien for both materials and labor, when he commences the work. As to what constitutes a commencement of work, see brief of appellee; also, Phillips on Mech. Liens, §§ 216 to 219, inclusive; Pennock v. Hoover, 5 Rawle, 291; Fleming v. Bumgarner, 29 Ind. 424; Gordon v. Torrey, 15 N. J. 112. Nor do we doubt that when, by the terms of the contract, one person is to do the labor, and another is to furnish the materials, the lien of each attaches from the time he commences the performance of his contract. As to the mechanic, this is unquestionably the rule; and it works no hardship to the person subsequently purchasing the property, dr acquiring a lien on it.' Commencement of the building is a patent fact, which all persons can see and know; and persons dealing in reference to such property are put on inquiry, and justly chargeable with knowledge of all that inquiry would lead to — namely, that there is, or may be, a mechanic’s lien under the statute. Such is the argument in vindication of this whole field of legislation, and its moral equities. The legislature aimed at protection to a meritorious class of citizens, and did not intend to provide a snare that might entrap bona fide purchasers, The record in this case informs us, that the contractor was to do the work, while Bickford, the owner of the lot and employer, was to furnish the materials. The building had been commenced, but was not completed. At this stage, Welch, the appellant, lent money to Bickford, and took a mortgage on the lot having the unfinished house on it. If Bickford was in arrears to the contractor, for work done, or to be done, under contract previously made, or to him or another for materials furnished, or to be furnished, under like prior contract partly executed, then Welch was not an innocent purchaser, but stood charged with notice of all information that inquiry would have led to. As to him and all others, the building was commenced. But, inasmuch as Porter & Co., the appellees, had, at that time, not only furnished no materials for the building, but had no contract for [232] furnishing such materials, there was nothing to put Welch on inquiry as to their claim, and no inquiry could have led to the discovery of material information. Nothing existed to be discovered. If we were to hold that, because a building had been commenced, a subsequent contractor or material-man could acquire a lien, which would take precedence over an intervening incumbrance, we think we would shock the moral sense of the profession, and fail to carry out the intention of the legislature. Let us show, by an illustration, to what consequences such doctrine would lead. A mechanic commences a building, but, for some cause, fails to complete it. He has forfeited his claim for compensation, or has been paid, and has no claim which can support a lien. An incumbrance is then created on the property, by mortgage or otherwise. Subsequent to the creation of this incumbrance, another mechanic is employed to complete the work and finish the building. Will his lien date back to the commencement of the building by his predecessor, and thus be preferred to that of the intervening incumbrancer? We suppose no one would contend for such a result as this, and yet we can perceive no difference, in principle, between the claim of such subsequent contractor, and that of a material-man who furnishes materials under a contract made after the creation of the incumbrance. In the case of Soule & Page v. Dawes, 7 Cal. 575, speaking of the liens of mechanics, the court said: “All persons who deal with the property, during the progress of the work, are charged with notice of the claim of the contractor. But if, after informing himself of the nature and amount of the contractor’s claim, he takes a conveyance of the property subject to it, I know of no rule of law, and certainly no principle of equity, which enables the parties, by' a subsequent contract, or by an alteration in the existing contract, to deprive him of the benefit of his purchase, by creating an incumbrance on the property, which was not contemplated in the original contract.” This language is quoted, as part of the text, in Phillips on Mechanics’ Liens, § 217. See, also, Fleming v. Bumgarner, 29 Ind. 424. On the questions we have been discussing, see Gordon v. Torrey, 15 N. J. Eq. 112; Schaeffer v. Lobman, 34 Mo. 68; Crowell v. Gilmore, 13 Cal. 54. We feel no hesitation in declaring that, where a building or improvement is commenced under one contract, and materials are subsequently contracted to be furnished, and are furnished under a separate and independent contract, not embraced or provided for in the original agreement, the lien of the materiakman does not attach from the actual com - [233] mencement of the building or improvement, nor at any other time anterior to the contract under which the materials are furnished. This is decisive of this suit, as the facts clearly appear in the bill of exceptions. Instead of the charge given on the facts hypotheticated, the charge should have been that, on the facts in this case, as shown by the evidence, if believed, the defendant was entitled to a verdict. The appellees, according to the evidence, are not without a lien. They have a lien on the property, “ to the extent, and only to the extent, of all the right, title, and interest owned therein by the owner or proprietor of such building [Bickford] for whose immediate use or benefit the labor was done, or things furnished.” — Code, §3441. They have a lien, also, which the statute declares “ shall attach to the building, erections, or improvements, only for which they were furnished, or the work was done, in preference to any prior lien, incumbrance, or mortgage upon the land upon which such buildings, erections, improvements, or machinery has been erected or put.” — Section 3442. To what extent this latter lien attaches, whether to the whole structure, or only to the materials which were furnished, is a question not ■raised By this record, and we need not decide it. It has not been discussed, and we withhold our opinion until the question properly arises. We state other questions which may arise under this statute, merely for the purpose of announcing that they are not intended to be now decided. First, when, by the terms of the contract, the work and labor are performed by the contractor, and materials furnished by a material-man under an independent, original contract, does the lien of the latter attach when his contract to furnish is made and the contractor commences work under his contract, or does it attach only from the time he commences to furnish materials by actual delivery ? Second, at what time, and to what extent, does the lien of a laborer, journeyman, employe or sub-contractor attach ? What we have said above renders a decision of all other questions unnecessary. Reversed and remanded.