Allen & Krosel v. Rowe

Strahan, J., delivered the opinion of the court. The right to a lien on a building for material and labor is conferred by statute, and the party claiming such lien must show a substantial compliance with the requirements of the statute or the lien must fail. In Kezartee v. Marks, 15 Or. 529, we had occasion to consider to some extent the question raised by the respondent Hawes, and we there held that to affect the land with the lien the name of the owner or reputed owner must be given in the notice; that such requirement in the statute was one of substance and could not be dispensed with; and further, that when the title to the house or structure and title to the land were in different persons, and the notice specifies the name of the owner of the building or structure, but not the name of the owner of the land, the lien might attach to such building but not to the land. The only real question that the court below seems to have considered was the sufficiency of the plaintiffs’ notice. On that question I think there can be no doubt. After describing the building and the real property sought to be charged with the lien, the notice proceeds: “Said real estate reputed to be owned by one E. R. Hawes and said building reputed to be. owned by one Geo. M. Rowe.” On the point of objection ruled against the appellants by the court below, the notice is sufficient. But a further question seems also to demand attention. One object of this suit is to reach the title of the owner of the land upon which the building is erected and to subject it to the lien. In case some person other than the owner employs a material man or laborer to furnish material or to do labor upon such land, something more is necessary to reach the title of such owner than to insert his name in , the notice filed with the county ciers and to say that he is such owner or reputed owner. Section 3672 of Hill’s Code was evidently designed by the legislature to meet such case. It provides: “Every building or other improvement mentioned in section 3669 [191] constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein; and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this act, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situated thereon. ” Under this section when the owner of the land did not employ the laborer or material man to furnish the materials, but the same was done by some other person, it must have been done with the knowledge of the owner or person having or claiming an interest in the land. In such case knowledge of the owner or person having or claiming an interest must exist and be shown as a fact. When this fact does appear, the lien reaches and binds his interest unless he relieved himself in the manner provided in the section by posting the notice within three .days after he obtained such knowledge. I have looked carefully through the pleadings and evidence to see if the fact in any manner appeared, but am unable to discover it. There will, therefore, be a decree foreclosing the lien of the plaintiffs against the building described and the leasehold interest of Geo. M. Rowe in the land described, the building to be sold separately from the land if the plaintiff so elect; otherwise the building and the interest of the defendant Rowe in the land may be sold together, and the proceeds of the sale shall be applied, first, to the payment of the lien of the plaintiff, and next to the mortgage of the defendant Loeb, which is hereby directed to be foreclosed. The decree of the court below will be reversed and a decree entered here in accor-dance with this opinion.