Opinion
August 16, 1901.
Before BENET, J., Newberry, October, 1900. Affirmed.
Complaint to foreclose mechanic's lien by Wilson and Mathews against J. Ed. Monts. From order overruling demurrer to complaint, defendant appeals.
Messrs. Johnstone Welch, for appellant, cite: Complaint must stand by its own allegations: 59 S.C. 258. Failure to allege that action was commenced within six months from ceasing to furnish material is a defect fatal on demurrer: Rev. Stat., 2471; Code, 111, 112; 13 Ency., 1 ed., 703, 688; 13 Ency, P. P., 977; 15 Ency., 1 ed., 157; Pom. Rem. Rem. Rights, 2 ed., 495. Complaint must allege that the "statement" contained a description of the property: 13 Ency. P. P., 984; 15 Ency., 1 ed., 155. Failure to allege ownership is fatal: Rev. Stat., 2466, 2469; 13 Ency. P. P., 969; 15 Ency., 158; 27 Ark. 564. Allegation as to when claimant ceased to furnish material is imperative: 13 Ency. P. P., 977; 15 Ency., 1 ed., 163.
Messrs. Hunt Hunt, contra, cite: Petition or complaint is drawn according to statute: Rev. Stat., 2475. Suit is commenced when petition is filed: 22 S.C. 540. Property is described in "statement" sufficiently for purposes of sale: Rev. Stat., 2469, 2475; 13 Ency. P. P., 983. If allegation of this fact in complaint be uncertain, exhibit fills it out: 59 S.C. 256. Where owner is purchaser, notice need not be given: Rev. Stat., 2466.
August 16, 1901. The opinion of the Court was delivered by
This appeal is from an order, overruling a demurrer to a complaint to foreclose a mechanic's lien. The demurrer was as follows:
"The said complaint does not state facts sufficient to constitute a cause of action:
"1. In that it is not alleged in the complaint that this action was commenced within six months after the plaintiffs ceased to labor or furnish material for said building.
"2. In that no description of the property is alleged to have been given in the `statement' filed in the clerk's office, May 21st, 1898.
"3. In that it is not alleged that the defendant is the owner of the property upon which said building was erected.
"4. In that it is not alleged that notice was given to the owner of the said property.
"5. In that the date of ceasing to labor and furnish material upon said building is not given."
1. The action was commenced on September 1, 1898, and the complaint alleges that "the petitioners above named delivered to the said J. Ed. Monts during the months of January, February and March of the year 1898, lumber and other building materials and performed labor thereon, c." So that it appears with reasonable certainty that the action was commenced within six months after the plaintiffs ceased to furnish labor or material, even if it be conceded that demurrer is the proper remedy. It would seem, however, that the proper remedy in such case is not demurrer, but answer setting up the statutory bar to the action. Sec. 94 of the Code provides that "the objection that the action was not commenced within the time limited can only be taken by answer."
2. We think the complaint shows compliance with sec. 2469, Rev. Stat. 1893, which requires that the "statement" to be filed with the clerk of the court or register of mesne conveyances within ninety days after ceasing to furnish labor or materials, shall contain "a description of the property intended to be covered by the lien sufficiently accurate for identification." The complaint alleges in paragraph 2 that plaintiffs, by the contract made with defendant, "were to furnish lumber and other building materials for the construction and erection of a one-story frame shingle roof building upon certain real estate hereinafter more fully described," and paragraphs 6 and 7 allege as follows: "6. That the above mentioned one-story frame shingle roof building is situate on a piece, parcel or tract of land lying in the county and State aforesaid, containing fifty acres, more or less, and bounded on the east by lands of * * * 7. That within ninety days after petitioners had ceased to furnish labor and materials for above described building, that is to say, on May 21st, 1898, the above petitioners filed in the office of the clerk of the court for Newberry County a just and true account due them, with all credits due, with notice therein that said petitioners would avail themselves and seek the benefit pursuant to the provisions of the act of the General Assembly of the State of South Carolina in reference to `labor performed or furnished, or for materials furnished and actually used in the erection, alteration or repair of any building or structure upon any real estate,' and all acts and parts of acts amendatory thereto. Said above mentioned paper was filed in the office of the clerk of the court for Newberry County on May 21st, 1898, in book No. 10, at pages 290, 291, 292, 293."
Then, in paragraph 9, said "statement" and petition was made a part of the complaint as an exhibit, in which exhibit the property is described as in the sixth paragraph of the complaint. While an exhibit to a complaint may not be used to supply a material allegation or cure a fatal defect in the complaint, it may be resorted to to make the allegations of the complaint definite and certain. Cave v. Gill, 59 S.C. 258. For the purposes of a demurrer, these allegations sufficiently show the filing of the statement required by the statute, containing a description of the property sufficiently accurate for identification.
3. The third specification is likewise untenable. The complaint, after referring to the real estate to be affected by the lien for labor and material, alleged that "the said J. Ed. Monts then and there stated that he was the owner of said real estate," and in the exhibit accompanying the complaint, which as shown may be resorted to to make the allegations of the complaint definite and certain, it is stated that J. Ed. Monts is the owner of the premises.
4. This specification cannot be sustained. Under sec. 2466, Rev. Stat., notice to the owner of the property to be affected by the lien, of the intention to claim such lien, need not be given, if the owner is the purchaser. By the allegations of the complaint the owner of the premises was the purchaser of the material, c.
5. As already shown, the complaint alleges that the materials were delivered and labor performed during the months of January, February and March, 1898, which substantially alleges that the date of ceasing to labor and furnish material was during the month of March, 1898.
The judgment of the Circuit Court is affirmed, with leave, however, to the defendant to answer, if he be so advised, within twenty days after the filing of the remittitur herein.