MacPherson v. Crum

Per Curiam. This is an action to foreclose a mechanic’s lien. From the judgment of the district court awarding a foreclosure, the defendant appeals and demands a trial de novo in this court. The facts are substantially as follows: The plaintiff made a contract with the defendant whereby he agreed to do the carpenter work and superintend the construction of a dwelling for the defendant in the city of Fargo. Pursuant thereto plaintiff performed certain labor between July 15, 1916, and December 15, 1916, and, claiming an unpaid balance due amounting to $516.40, he filed a mechanic’s lien therefor on January 2, 1917. In the lien the plaintiff stated that “under a contract with Taylor Crum, the owner of the premises hereinafter described, he performed labor upon the construction of a residence for the said Taylor Crum, said labor commencing on or about July 15, 1916, and continuing to on or about the 15th day of December, 1916, as specified in the annexed account, at the respective dates and at and for the respective prices specified in said account; for a certain residence and dwelling situated upon the following described land of which the said Taylor Crum was then and is now the owner thereof, to wit: Lot one in block twenty of Roberts’ second addition to the city of Fargo, in Cass county, North Dakota.” The lien statement sets forth the amount due the plaintiff for his labor, and asserts that a mechanic’s lien is claimed in favor of said plaintiff upon said residence and dwelling, including the land hereinbefore described upon which the same is situated. The evidence shows that the said lot was 140 feet by 50 feet. This action involves a new two-story duplex house situated on and occupying the west 60 feet of said lot. Prior to this contract and construction there was a dwelling on, and occupying a portion of, the east 80 feet of said lot. Said dwelling was then, and for a long time prior [223] thereto had been, occupied by the defendant and his wife as their home. Said dwelling was entirely separate and distinct from the duplex constructed by the plaintiff. The trial court found that the west' 60 feet of said lot were appurtenant to the building constructed, and the judgment rendered decreed a foreclosure upon the west 60 feet of said lot only; that is, the trial court restricted the lien to the land actually covered by the building constructed by the plaintiff. In the trial court the defendant challenged, and before this court he challenges, the validity of the lien, upon the ground of incorrect and indefinite description of the property to be charged with the lien. He also asserted that the plaintiff had failed to comply with the terms of his contract, and hence was not entitled to a lien; and that under the terms of the written contract he was not entitled to recover for certain alleged extras. These claims were asserted by defendants by way of defense and counterclaims, and affirmative judgment was asked against the defendant for $799.77. No defense was made or right predicated upon the homestead character of the premises. The case was tried to the court without a jury. The trial court made findings in favor of the plaintiff as prayed for in his complaint, and disallowed the counterclaims. On this appeal defendant contends that the judgment is erroneous, and he presses the same contentions which were advanced in the court below. The evidence is quite extended. No good purpose would be subserved by reciting it in detail. Upon many points there is a direct conflict. • The members of this court have individually considered the contentions advanced by the defendant, and they are all agreed that in so far as the trial court found that the defendant was indebted to the plaintiff for the amount claimed in the lien, and that defendant was not entitled to recover upon his counterclaims, the decision of the trial court is right, and should not be disturbed. The members are also all agreed that there is no merit in the contention that plaintiff has forfeited his right to claim a mechanic’s lien. The only question upon which the members of this court have had any difference of opinion is with respect to the sufficiency of the description of the property in the lien statement. A majority of the court are of the opinion, however, •that the description is sufficient. Our statute provides that a person who desires to avail himself of the provisions of the mechanic’s lien law shall file with the clerk of the [224] district court of the county where the property sought to be charged is situated, within ninety days after furnishing labor or materials, a just and true account of his demand, duly verified, containing a correct description of the property to be charged with such lien; “but a failure to file the same within the time aforesaid shall not defeat the lien, except as against purchasers or encumbrancers in good faith and for value whose rights accrue after the ninety days and before any claim for the lien is filed, or as against the owner, except the amount paid to the contractor after the expiration of the ninety days and before the filing of the same.” Comp. Laws 1913, § 6820. “The entire land upon which any such building, erection, or other improvement is situated, or to improve which the labor was done or things furnished, including that portion of the same not covered therewith, shall be subject to all liens created by this chapter to the extent of all the right, title, and interest owned therein by the owner thereof for whose immediate use or benefit such labor was done or things furnished. . . .” Comp. Laws 1913, § 6823. Section 6818, Comp. Laws 1913, provides that if labor is done or materials furnished under a single contract for several buildings, erections, or improvements situated “upon a single farm, tract, or lot,” the person furnishing such labor and materials shall be entitled to a lien therefor “upon all such buildings, erections, and improvements and the farm, tract, or lot upon which the same are situated.” The important means of identifying urban realty is the description according to the plat. Northwestern Cement & Concrete Pav. Co. v. Norwegian-Danish E. L. A. Seminary, 43 Minn. 452, 45 N. W. 868; 27 Cyc. 162. In this state express provision has been made for the filing and preserving of such plats, and penalties are imposed for placing city or village lots on sale until a plat has been made and filed. ■Comp. Laws 1913, §§ 3942-3958. It is undisputed that the description given in the lien statement in this case was the smallest legal subdivision that could be given. The lot was 140 feet long and 50 feet wide. It had not been subdivided.' Under some of the authorities the plaintiff would be entitled to claim a lien upon the entire lot. See 18 R. C. L. p. 949. But in this case we are not concerned with that question, for the trial court limited the lien to that portion of the lot immediately appurtenant to the building on which the lien was claimed. The [225] lien is not defeated because the claim or statement describes more land than is subject to the lien; where there is no fraudulent intent and no one is injured thereby. 27 Cyc. 159. Nor is its validity affected by the fact that it does not cover as much land as might properly be included therein. 27 Cyc. 160. It is true there were two houses on the lot at the time the lien was filed. But the lien statement expressly stated that the lien claimed was upon a house, in the construction of which plaintiff' performed labor between July 15, 1916, and December 15, 1916. It would seem that, as between the parties at least, this description was entirely adequate. “It is only necessary that the statement or notice of lien should so describe the property that it can be reasonably recognized. In other words, a description is sufficient if it contains enough to enable a person who is familiar with the locality to identify the land intended to be described with reasonable certainty.” Jones, Liens, 3d ed. § 1421. “The claimant is not required, before filing his claim of lien, to make an accurate survey of the lot upon which the building stands, at the risk of losing his lien if he makes a slight mistake in giving its boundaries, nor is he even required to give the boundaries of the lot.” “The best rule,” says Phillips (Phillips, Mechanics’ Liens, § 379), “to be adopted, is 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 exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanics’ claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise. It is enough that the description points out and indicates the premises, so that, by applying it to the land, it can be found and identified.” This rule was approved by this court in Howe v. Smith, 6 N. D. 432, 434, 71 N. W. 552, and in effect has been reaffirmed in later decisions. It has also received the support of the courts and legal writers generally. See Bloom, Mechanics’ Liens, § 402; Jones, Liens, 3d ed. § 1421; and authorities cited in Howe v. Smith, supra. In Howe v. Smith, this court said: “Tested by the doctrine of these cases, — a doctrine universally recognized, — it is evident that the property was described with sufficient accuracy to make such description a [226] ‘correct description,’ within the meaning of the statute. No one familiar with the locality and with all the facts — as the owner must be deemed to be — could possibly misunderstand what property was meant.” 6 N. D. 435, 436. This language is applicable to this case. Judgment affirmed.