Opinion
Decided January 17, 1930.
Mechanics' liens — Character, operation and extent statutory — Section 8314, General Code — Statute cannot be amended or extended by judicial construction — Consideration given to decisions of foreign states deciding similar questions, when — Statutory method for acquiring lien to be strictly followed — Compliance with each requisite step, necessary — Deficiencies or omissions in affidavit cannot be supplied when — Affidavit insufficient in not showing amount due, less legal set-offs.
1. Character, operation, and extent of mechanic's lien must be ascertained from statute creating and defining it (Section 8314, General Code).
2. Mechanics' lien statute cannot be amended or extended by judicial construction or interpretation to meet situation not provided for or contemplated (Section 8314, General Code).
3. Where court of state has not decided question, consideration must be given to Supreme Courts of other states which have decided same or similar questions.
4. Legislature's intention must be ascertained from language used in statute.
5. Where method by which mechanic's lien may be acquired has been prescribed by statute, same must be strictly followed (Sections 8314 and 11319, General Code).
6. It must affirmatively appear from face of affidavit that each requisite step required by mechanic's lien statute has been taken (Section 8314, General Code).
7. Deficiency or omission in affidavit of requirements of mechanic's lien statute is fatal to lien (Section 8314, General Code).
8. Deficiency or omission of requirements of mechanic's lien statute in affidavit cannot be supplied by amendments or parol evidence (Section 8314, General Code).
9. Where affidavit of mechanic's lien claimant showed amount due for material furnished, but did not show amount due less any legal set-offs, affidavit was insufficient, and no lien attached (Sections 8314 and 11319, General Code).
APPEAL: Court of Appeals for Richland county.
The statement of facts referred to in the opinion is as follows:
That plaintiff, the D. H. Coal Company, obtained a judgment in the municipal court of the city of Mansfield, Ohio, against the defendants Michael Lay and Elizabeth Lay in the sum of $287.51, with costs. That on the 30th day of March, 1928, execution was duly issued on said judgment, and, for want of goods and chattels thereon to levy, was on said day levied on the following described real estate, situate in the county of Richland, State of Ohio, and in the city of Mansfield, and known as lot No. 8199 in said city of Mansfield; also the following described premises, to wit: Lot No. 165 in Bell addition to the city of Mansfield. That said judgment is a lien on said aforesaid described premises, and that there is due on same, together with costs, the sum of $308, with interest from the 7th day of August, 1929.
That the defendants Michael Lay and Elizabeth Lay, on the 25th day of July, 1927, executed and delivered their note to the Central Ohio Bond Mortgage Company in the sum of $3,000, secured by a mortgage on said lot No. 8199 of the consecutive numbers of inlots in said city of Mansfield. That on the 30th day of July, 1927, at 9:30 a.m., said mortgage was duly left for record at the recorder's office of Richland county, Ohio, and was duly recorded in Mortgage Record 101, page 23, and is a lien on said lot No. 8199. That thereafter said note and mortgage was duly assigned to the Mortgage Assurance Corporation. That there is due and unpaid on said note secured by said mortgage the sum of $3,174.50, with interest at 8 per cent. from the 12th day of August, 1929.
That the defendants C.C. Constance Sons furnished certain material to Michael Lay and Elizabeth Lay and the Farmers Savings Trust Company, as trustee in and for the construction of a certain dwelling house for said Michael Lay and Elizabeth Lay and the Farmers Savings Trust Company, as trustee, situate on lot No. 8199 of the consecutive numbers of lots in the city of Mansfield, Ohio. That the first of said material was furnished on the 13th day of July, 1927, and that the last of such material was furnished on the 2d day of September, 1927. That there is due and unpaid to the said C.C. Constance Sons from the said Michael Lay and Elizabeth Lay, on account of furnishing said material, the sum of $1,416.80, with interest from August 7, 1929. That said C.C. Constance Sons on the 29th day of October, 1927, filed a certain affidavit with the county recorder of Richland county, Ohio, wherein they stated they had furnished certain material to said Michael Lay and Elizabeth Lay and the Farmers Savings Trust Company, owners of said lot No. 8199, for the construction of a dwelling house thereon. That said affidavit was duly recorded in volume 9, page 350, of the Mechanics Lien Record of Richland county, Ohio. That a copy of said affidavit is hereto attached, marked "Exhibit A," and made a part hereof. That a true copy of said affidavit on the 29th day of October, 1927, was served on Michael Lay and Elizabeth Lay and the Farmers Savings Trust Company. That said copies of said affidavit so served had a statement thereon that it was a true copy of an affidavit filed with the county recorder for the purpose of asserting a lien as therein claimed.
That on the 26th day of August, 1927, the defendants Michael Lay and Elizabeth Lay executed and delivered to L.B. Hamilton their certain promissory note in the sum of $700. That to secure the payment of said note the said defendants Michael Lay and Elizabeth Lay executed and delivered to said L.B. Hamilton their mortgage deed on lot No. 8199 of the consecutive numbers of lots in the city of Mansfield, Richland county, Ohio, and also on the plat of Oak Hill allotment, part of out lot No. 3 as recorded in Plat Book 12, page 9, of the Plat Records of Richland county, Ohio, and to secure the payment of said note. That said mortgage deed was left for record with the recorder of Richland county, Ohio, on the 27th day of August, 1927, at 11 a.m., and was recorded in Mortgage Records, volume 101, page 1515, and is a lien on said lot No. 8199. That thereafter said note and mortgage was duly transferred and assigned to the defendant the Franklin Finance Company, and that there is now due and unpaid on said note the sum of $675, with interest at 8 per cent., payable semi-annually, from the 26th day of August, 1928. That the said defendants Michael Lay and Elizabeth Lay, to further secure said foregoing amount due the said the Franklin Finance Company, did on the 14th day of February, 1928, execute and deliver to L.B. Hamilton their mortgage deed conveying lot No. 165 of the consecutive numbers of inlots in Bell Heights addition to the city of Mansfield. That on the 23d day of February, 1928, at 2:20 o'clock p.m., said mortgage was filed with the recorder of Richland county, Ohio, and recorded in Mortgage Records, vol. 103, page 20, and that the same is a lien on said lot. That thereafter the said L.B. Hamilton duly transferred and assigned said mortgage to the defendant the Franklin Finance Company.
That on the 16th day of February, 1925, one John Zimmerman executed and delivered to the defendant the Citizens Savings Loan Company his promissory note for the sum of $175, with interest. That, to secure the payment of said note, the said John Zimmerman, then being the owner thereof, duly executed to the Citizens Savings Loan Company a certain mortgage deed conveying lot No. 165 in Bell Heights addition, Madison township, Richland county, Ohio. That said mortgage was filed for record with the county recorder of Richland county, Ohio, on the 25th day of February 1925, at 3:20 o'clock p.m., and was recorded in Mortgage Record, volume 92, page 269, and thereby became a lien on said premises. That thereafter the said John Zimmerman transferred said premises to the defendants Michael Lay and Elizabeth Lay, and that there is now due the Citizens Savings Loan Company on said note secured by said mortgage the sum of $135.48, with interest at 8 per cent. from the 7th day of August, 1929.
"Ex. A. C.C. Constance Sons. "Affidavit for Mechanics Lien."State of Ohio, Richland County, ss:
"Ralph Constance being first duly sworn deposes and says that he is one of the partners of C.C. Constance Sons, a partnership, composed of C.C. Constance, Ralph Constance and John Constance, That he is duly authorized to make this affidavit.
"That C.C. Constance and Sons furnished certain material in and for the construction of a certain dwelling house situate upon the land hereinafter described in pursuance of a certain contract with Michael Lay, Elizabeth Lay and The Farmers Savings and Trust Co., Trustee, the owners.
"The last of such material was furnished on the 2d day of September 1927, and there is justly and truly due C.C. Constance and Son therefor the sum of $1270.68 for which amount C.C. Constance and Sons claim a lien against said land of which Michael Lay, Elizabeth Lay and The Farmers Savings and Trust Co., Trustee are or were the owners, which said premises are described as follows:
"Being lot number Eighty one Hundred ninety nine (8199) of the consecutive numberings of lots in said City of Mansfield, Ohio.
"[Signed] Ralph E. Constance.
"Sworn to before me and subscribed in my presence this 29th day of October, 1927.
"[Signed] Helen Mamber "[Seal] Notary Public"
Mr. Harry F. Bell, for plaintiff.
Mr. L.H. Beam, Mr. Van C. Cook and Mr. Wm. McE. Weldon, for defendants.
This cause comes into this court from the court of common pleas of Richland county, Ohio, by way of appeal. The same is submitted upon an agreed statement of facts signed by all the parties of interest, and the agreed statement of facts is made a part of this opinion the same as if fully rewritten and incorporated herein.
So, without incumbering the record and repeating any of the agreed statement of facts, or conditions or agreements stipulated therein, to which reference may be had as hereinbefore referred to, we consider that the only question for the court in this cause to determine is whether or not C.C. Constance Sons have so complied with the Mechanics' Lien Act as to secure a lien on the premises described in the petition.
At the very outset of this case the court takes notice that in the affidavit filed with the recorder claiming a lien there is no allegation showing the amount due over and above all legal set-offs.
The statute we have considered in this case, Section 8314, General Code, provides that those who desire to avail themselves of the Mechanics' Lien Act shall file an affidavit with the county recorder concerning certain matters, and the same also provides a form for the affidavit, in the following language:
"Every person, or his agent or attorney, whether contractor, subcontractor, materialman or laborer, who wishes to avail himself of the provisions of this statute, shall make and file for record in the office of the recorder in the county or counties in which said labor was performed or machinery, material or fuel furnished, an affidavit showing the amount due over and above all legal set-offs, a description of the property to be charged with the lien, the name of the person to or for whom such machinery, materials or fuel were furnished and labor performed, and of the owner, part owner, or lessee, if known."
This same statute then further provides as to the verification of the affidavit.
The term set-off is defined by Section 11319, General Code, as follows:
"A set-off is a cause of action existing in favor of a defendant against a plaintiff between whom a several judgment might be had in the action, and arising on contract or ascertained by a decision of a court. It can be pleaded only in an action founded on contract."
We believe that it is well settled by the law of this state, and by that of other jurisdictions, that the character, operation, and extent of a statutory lien must be ascertained from the statute creating and defining it. Such statute cannot be amended or extended by judicial construction or interpretation to meet a situation not provided for or contemplated. Such remedy is purely legislative notwithstanding the beneficent and constructive purpose and object of the provisions of the mechanics' lien statute and the declaration that they shall be liberally construed in so far as they are remedial, yet, being in derogation of the common law, the character, operation, and extent of the lien must be ascertained by the terms of the statute creating and defining it, and the parties cannot extend the statute to meet cases for which the statute itself does not provide, though these may be of equal merit with those provided for.
The question presented to us in this case has not perhaps been squarely met by any Ohio court, therefore we appreciate that this question must be determined to a greater or less extent on the provisions contained in our mechanics' lien acts with the rules of construction laid down by other courts. Therefore, some consideration should and must be given to the Supreme Courts of other states where they have had the same or similar questions on this same proposition. We therefore cite Davis v. Livingston, 29 Cal. 283, wherein, among other things, it is provided in an affidavit for a materialman's lien that it shall contain a statement and the amount for which the lien claimed is due, over and above all payments and set-offs, where it was held that the subcontractor or materialman, in order to hold a lien for work done or material furnished to the contractor, must strictly comply with the provisions of the act.
Upon examination of the affidavit under consideration in the instant case it will readily be noticed that the lien claimant's affidavit is silent as to whether or not the amount due for material furnished might be affected by any legal set-off.
The affidavit states that material was furnished Michael Lay, Elizabeth Lay, and the Farmers Savings Trust Company, and that there is due the lien claimant therefor the sum of $1,270.86. As to whether or not the Farmers Savings Trust Company, Michael Lay, and Elizabeth Lay had any claim in the nature of a set-off against said lien claimant no showing in the affidavit is made.
The language of the statute is clear that the amount to be placed in the affidavit for a lien is the sum due for the material furnished, less any claim or claims in the nature of a set-off that the owner has against the lien claimant.
The amount stated in this affidavit is for the sum due for the materials, and whether or not it might be reduced slightly or wholly by a set-off no information is given.
The Legislature has spoken. It has provided the method and step by which a mechanic's lien may be fastened on real estate; it has stated in express language that the lien claimant should make an affidavit showing the amount due over and above all legal set-offs. That the lien claimant might follow the provisions required in the statute, the Legislature provided a form which he might use, and in that form it uses this express language: "There is justly and truly due the deponent therefor from the said ___, over and above all legal set-offs, the sum of ___ dollars."
If the Legislature had only intended that the lien claimant should state in his affidavit the amount due for the labor or material furnished, there might then be some force in the argument that the lien claimant's affidavit is sufficient, but, if the Legislature intended a lien claimant to show in his affidavit that he had given credit on his claim for any set-offs the owner might have, then the affidavit, in our opinion, is clearly deficient.
We believe the intention of the Legislature must be ascertained from the language used in the statute.
We note that the courts of other jurisdictions have construed similar provisions in their statutes and have held that it was the intention of the Legislature that the notice or affidavit for a lien should expressly state that the amount claimed is the sum left after deducting all credits and set-offs, and that said provisions are imperative and must be alleged as set forth in the statute, or no lien attaches.
Therefore we find, believe, and hold that, where the method by which a mechanic's lien may be acquired has been prescribed by statute, the same must be strictly followed; that it must affirmatively appear upon the face of the affidavit that each requisite step has been taken; that a deficiency or any omission of requirements is fatal to the lien; and that it cannot be supplied by amendments or parol evidence.
The affidavit in this case shows the amount due for the material furnished, but it does not show, as strictly prescribed by statute, the amount due less any legal set-offs.
It therefore follows that this affidavit for a mechanic's lien being deficient, no lien has herein attached.
Therefore it is the holding of this court that the lien asserted by C.C. Constance Sons in their cross-petition was not legally perfected, and that it has not been legally established in this case as a lien against lot 8199 in the city of Mansfield, Ohio.
There being no controversy as to the priority of the other parties in interest herein, their interests will be taken care of by proper entry in accordance with this opinion.
Decree accordingly.
SHERICK, J., and MIDDLETON, J. (of the Fourth Appellate District), concur.