White v. Washington School District

Postee, J. There is no dispute as to the amount of the plaintiff’s claim against Joseph E. R. Pierce, and that that claim is due and unpaid. Pierce was a contractor with the defendants to construct for them a schoolhouse, and this debt [544] to the plaintiff was incurred for services rendered and materials furnished by him in the erection and construction of the same. It is admitted that all the acts by law made necessary to be done on the part of the plaintiff to create a lien on the premises, have been done. The matter in controversy is as to the amount of the lien. The plaintiff claims that it should be for the whole sum due from Pierce; the defendants insist that it should be for a portion only, a little more than one-half of that amount. It appears that when the contract for the building was completed, there was due Pierce, from the district, 11,394.47. Divers persons had claims against him of the same character with that of the plaintiff, for work done and materials ñn> nished on the contract, amounting, with that of the plaintiff, to the sum of $2,540.03. The defendants proposed to divide the sum they owed Pierce among these, several claimants, pro rata. Most or all of the claimants, except the plaintiff, acceded to this proposition. He insisted on being paid in full. The court below sustained his claim, and rendered judgment and passed a decree accordingly in his favor. Is it error ? Our statute provides that no lien shall attach to any building, &c., in favor of any subcontractor, to a greater amount, in the whole, than the price which the owner agreed to pay for such building, &c. It also provides, that in determining the amount to which any lien shall attach upon any land or building, the owner of the same shall be allowed whatever payments he shall have made, in good faith, to the original contractor, before receiving notice of the lien which is claimed. Where the amount of the lien or liens claimed exceeds the amount of the price the owner was to pay for the building, or the amount of the balance due from him to the original contractor, ascertained as aforesaid, the law authorizes an apportionment to be made by the court, of the sum due, among the claimants, in proportion to the amount of their Several debts. Gen. Statutes, Rev. of 1875, p. 360, sec. 12. The amount of the liens claimed in this case is, as we have seen, much larger than the sum found due, and the question is whether the plain [545] tiff must take his apportionment, or is entitled to the full sum. If all the claimants had taken the steps required by law to fix their liens upon the premises, of course all would be equally entitled, and there would be an apportionment among them of the sum due, pro rata. The record however discloses the fact, that of the amount of liens claimed, $2,540.08, certain claimants, who represent $1,361.68, have not taken all the steps required by law to establish a lien upon the premises. That being the case, no lien has been created in favor of those claimants. The sum due them being disregarded, as it must be, in estimating the amount of the liens, the amount due from the defendants to Pierce, the contractor, is more than sufficient to pay the plaintiff in full, together with all the other claimants for liens. We can give no countenance to the claim, that the defendants could, and did, waive a compliance with the statute requisites for establishing a lien, and so put all these claimants upon the same footing. All these claims may be equally just, and the obligation of Pierce to pay them may be equally binding, legally and equitably. But the right to fix a lien on-buildings and land, for a debt of this description, is created-by positive law, and the acts required to be done must be done to entitle the party to the benefit of the law. A lien cannot be created by agreement or by waiver, surely not to the prejudice of a third party, who has complied fully with the requirements of the law. To sanction such a claim would violate the most wholesome principles, and lead to evils too obvious to require specification. There is no error in the judgment and decree below. In this opinion the other judges concurred.