Opinion
December Term, 1897.
C.H. Sturges, for the appellant.
Edgar T. Brackett, for the respondent.
Section 1 of chapter 342 of the Laws of 1885 enacts that any person entitled to a mechanic's lien under the provisions thereof may effectuate the same on filing the notice prescribed in the 4th section of the act. Under the provisions of section 4 the notice of lien shall contain the names and residences of the claimants, the nature and amount of the labor and services performed or materials furnished, with the name of the owner, lessee, general assignee or person in possession of the premises, against whose interest a lien is claimed.
The notice filed in this case states "that the name of the person by whom the claimant was employed, and to whom he furnished said lumber and such materials, is William Groat, contractor, who was erecting said buildings above mentioned for Aaron B. McCrillis, the owner thereof, pursuant to contract with him. * * *
"That the name of the owner, lessee, general assignee or person in possession of the premises against whose interest a lien is claimed is Aaron B. McCrillis; that such materials were furnished with the consent of said owner. * * *
"That said lands above described belong to one Edwin A. Weed, and that the buildings thereon belong to Aaron B. McCrillis, and were erected thereon by and under an agreement between said Weed and said McCrillis that said buildings might be removed therefrom by said McCrillis.
"The claimant has and claims a lien * * * upon such house and building, said building so erected upon said above-described lands; * * * and claimant further claims a lien upon all appurtenances and upon the lot, premises, parcel and farm of land upon which the same stands, pursuant to the statute in such case made and provided, to the extent of the right, title and interest at the time existing of such owner, whether owner in fee or of a less estate, or whether a lessee for a term of years, or vendee in possession, under a contract existing at the time of the filing of this notice of lien, or of the owner of any right, title or interest in such estate."
It will be seen by the above quotations that the plaintiff in the notice of lien expressly stated that the name of the owner, lessee or party in possession against whom he claimed a lien, was Aaron B. McCrillis; that the materials for which a lien was claimed were furnished with his consent.
It is true that the notice subsequently states that the lands described therein belong to the appellant, but it it does not say that the materials were furnished with his consent, or claim a lien upon his interest in the premises. The last clause in the notice, where the plaintiff asserts a lien upon the buildings erected upon said premises, and upon the lot on which the same stand, to the extent of the right, title and interest at the time existing of such owner, must be deemed to refer to McCrillis, the owner of the building, and the party whom the claimant had before designated as the one against whose interest a lien was claimed.
The provisions of section 4 ( supra), that "The failure to state the name of the true owner, lessee, general assignee or person in possession shall not impair the validity of the lien," has no application in a case like this, where the claimant, knowing the name of the owner of the premises, and the lessee in possession thereof, who has erected a structure thereon, for whom the plaintiff furnished materials, in his notice of lien expressly limits his claim to the interest of such lessee therein.
It is evident that the plaintiff, in filing his notice of lien, intended to create it against the interest of McCrillis in the premises described therein, and not against that of the general owner. It will be observed that in the docket of the lien Bartlett B. Grippin is named as claimant, William Groat as contractor, and Aaron B. McCrillis owner. The name of the appellant does not appear therein.
There being no notice of lien filed as against the appellant, without considering other questions raised, the judgment should be reversed, and final judgment rendered for the appellant, with costs in this court and the court below.
All concurred.
Judgment reversed and final judgment rendered for the appellant, with costs.