Doke v. Benton County Lumber Co.

Kirby, J., (after stating the facts). (1-2) The original complaints of the Benton County Lumber Company, the Builders’ Supply Company and C. O. 'Mitchell, were filed May 31,1911, and thé affidavits filed in the clerk’s office claiming liens stated that the materials furnished were sold to the administrator after the death of the intestate. Notice of claim of lien by the Benton County Lumber Company was given to the administrator on the 26th day of May, 1910, and the account and lien claim were filed with the circuit clerk on the 8th of June, 1910. Notice of claim of lien of the Builders’ Supply Company was given the administrator on the 6th day of May, 1910, and their account for the amount claimed due was filed with the circuit clerk of Benton County on the 27th of May, 1910. The notice was given the administrator in the C. O. Mitchell case on the same day, and the lien claim filed with the clerk of the circuit court on the same day as in the Benton County Lumber Company case. (3) Liens of mechanics and material men for work done or materials furnished in the 'construction of an improvement are creatures of the statute, and must be perfected and enforced according to its provisions. The work must be done or the materials furnished “under or by virtue of a contract with the owner or proprietor of the building or improvement or his agent, trustee, contractor or subcontractor,” and every person except the original contractor, who would avail himself of the benefit of the mechanics’ lien act, is required to give ten days’ notice before the filing of the lien “to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due.” A just and true account of the amount claimed, containing a description of the property to be charged with the lien, is required to be filed with the'clerk of the circuit court of the county in which the improvement is situated within ninety days after the work has been done or the materials furnished, and all actions to enforce the liens must 'be commenced within fifteen months after the date of their filing with the circuit clerk. Kirby’s Digest, § § 4970, 4976, 4981-84. (4-5) The administrator of an estate is not the owner or proprietor of the lands of the estate, nor the agent of the heirs within the meaning of the statute relating to mechanics ’ liens. Lands and tenements are only assets in the hands of an administrator for the payment of the debts of the intestate when the personal property of the estate is insufficient to pay the debts. The complaints and the lien claims filed with the circuit clei’k in two of the cases show that the materials for the completion of the improvement were furnished to the administrator after the death of the intestate, and upon contracts made with the administrator and not upon contracts with the intestate. (6) The evidence is also virtually undisputed that the personal property of the estate was sufficient to pay the debts thereof at the time of the administrator’s appointment, and the order of the probate court was made attempting to authorize 'him to complete the building. Under these conditions, notice to the administrator and the lien claim filed, showing the contract with him for the materials furnished, could not fix a lien against the improvement, and the administrator was without authority to contract and the probate court had no such power to authorize him to complete the building or improvement and purchase materials therefor, for which the furnishers could claim liens upon the improvement. Kirby’s Digest, § 186; Langston v. Canterbury, 73 S. W. 151; Woerner on Administration, § 518; Waldermeyer v. Loebig, 81 S. W. 904; Brackett v. Tillotson, 4 N. H. 208. (7) There was an attempt by am ended complaint to allege a contract made with the deceased during his lifetime, but the claims for liens filed show that the materials were furnished to his administrator upon a contract with him after the intestate’s death, and after the order of the probate court had been made attempting to authorize him to complete the building. The heirs have the right to the real property of an estate unless and until it is necessary to apply it to the payment of the debts of the intestate, and it is not within the province of the administrator to construct or complete buildings at the expense of the real estate, for which mechanics’ liens can be fixed and enforced against it. Neither is C. O. Mitchell entitled to a lien against the improvement. The court below found that he did not file his claim and account for a lien with the circuit clerk within ninety days after the work was done and the materials furnished under his contract therefor made with the intestate, and dismissed his complaint without prejudice as to the amount due thereon, and this judgment was not appealed from. It also found that he had contracted with the administrator for and delivered materials to him' which were used in the construction of the building, amounting to $40.60, for which it adjudged him a lien against the improvement. These materials were furnished upon the contract made with the administrator, and a lien was attempted to be fixed against the improvement by filing a claim therefor with the circuit clerk after giving the ten days’ notice of his intention to do so. It falls within the rule already announced and the court erred in its decree. None of the claimants were entitled to mechanics’ or materialmen’s liens against the improvement, and the court erred in not so holding. The decree is reversed and the cause remanded, with directions to dismiss the complaints for want of equity.