Opinion
05-24-1824
Smith v. Marks.[*]
Daniel, for the appellant. Wickham, for the appellee.
Decree affirmed.
SYLLABUS
Smith filed his bill in the Hustings Court of Richmond, to recover of Marks, a balance of money due him for building a house under a contract with Marks. After stating the terms of the contract particularly, and averring the performance on his part, he admitted that he had received some partial payments, and claimed the balance still due. He further alledged, that Marks had obtained from him a certificate, which was necessary to support his credit at the Bank of Virginia, that he was not indebted to him on account of the contract aforesaid. Smith at first hesitated; but, after great importunity from Marks, and his repeated assurances that the certificate should have no operation on the future settlement of their accounts, he, (Smith,) from kindness to Marks, gave the certificate. But, he alledged, that he [UNREADABLE WORD] that Marks intended to use it to his injury.
Marks answered, stating, that Smith had not performed his contract in a proper manner; that as to the certificate, he denied that he told Smith what he wanted it for; that it was, in truth, to satisfy a gentleman of the state of accounts between himself and Smith; but it was not so used, & c.
The deposition of Henry Banks stated, that he was applied to by Marks to draw such a certificate as that stated in the bill, and that Marks informed the deponent that it was to be submitted to the Bank, to counteract some reports injurious to his credit; that the deponent accordingly drew such a paper; that a short time afterwards, Smith applied to the deponent to institute an action against Marks on account of the contract abovementioned; and the deponent, recollecting the certificate, informed Smith that the paper which he had given to Marks might be used in a suit at law, to defeat his claim; and told him that he had no alternative but to sue Marks in Chancery, & c.
The Court of Hustings decreed in favor of Smith, and Marks appealed to the Court of Chancery. That Court reversed the decree of the Hustings Court, and dismissed the plaintiff's bill. From this decree the plaintiff, Smith, appealed to this Court.
Daniel, for the appellant.
Wickham, for the appellee.
OPINION
Carr, Judge [*]
This is a bill filed by a carpenter, against his employer, to recover the balance due him for building a house. The dimensions of the house, the manner in which the work was to be done, the sum to be paid, and the days of payment, are stated in a written contract between the parties, filed with the bill. Has equity jurisdiction in such a case? It is claimed on two grounds: 1st. Because this is matter of account, and account is a settled head of equitable jurisdiction. 2d. Because the certificate, given by the plaintiff to the defendant, impedes his course at law, and, therefore, equity ought to entertain him.
For the assertion, that account is a head of equity, authority may be found in several elementary writers, and books of practice. But, the position is not to be taken in that large and comprehensive sense, given to the word account in common parlance. To shew this. I will refer to a few cases. Dinwiddie v. Baily, 6 Ves. 136. The plaintiff, an insurance broker, filed a bill for a discovery and account, of money paid and received by him in that capacity, on account of the defendants, and money due to him for commission, postage of letters, & c., and upon promissory notes endorsed to him; and to restrain an action bought contrary to the universal custom of the business. The defendants put in a general demurrer. Lord Eldon said, " I should feel infinite reluctance in sustaining such a bill." After several other remarks, he adds, " it is not to be said, that in every case where the defendant owes more to the plaintiff, that is a ground for a bill. There must be mutual demands forming the ground. The case of dower is always considered a case standing upon its own specialties. So is the case of the steward. The nature of his dealing is, that money is paid in confidence, without vouchers, embracing a great variety of accounts with tenants; and nine times in ten, it is impossible that justice can be done to the steward. If I sustain this bill, there never would be an action in the city against a broker, without a bill in equity. I hesitate, excessively, in permitting such a bill; and the strong inclination of my opinion is, that the demurrer must be allowed. There is hardly a case of set-off, in which a bill might not be sustained, if this may." Time was given to search for precedents; and at a subsequent day, the Chancellor declared; " it was impossible to sustain the bill, without laying down, that wherever a person is entitled to a set-off, he may come into this Court; " and the demurrer was allowed. This, with the case of Wells v. Cooper, decided in the Court of Exchequer, seem to be considered as giving the rule. In the latter case, Chief Baron Eyre said, if it was only one matter, it could not be the subject of a bill; but, where there had been a series of transactions on the one side, and payments on the other, he was not satisfied that it was not matter of account. In a later case, Corporation of Carlisle v. Wilson, 13 Ves. 279, Lord Erskine lays down the doctrine rather more largely. He says, " the principle upon which Courts of Equity originally entertained suits for an account, where the party had a legal title, is, that though he might support a suit at law, a Court of Law either cannot give a remedy, or cannot give so complete a remedy, as a Court of Equity; and by degrees, Courts of Equity assumed concurrent jurisdiction in cases of account; for, it cannot be maintained, that this Court interferes only when no remedy can be had at law." He adds, " the proposition is, not that an account may be decreed in every case, where an action for money had and received, or indebitatus assumpsit may be brought, but, that where the subject cannot be so well investigated in those actions, this Court exercises a sound discretion in decreeing an account." In Porter v. SpencerJohns. Ch. 169, the bill stated, that the plaintiffs were merchant tailors, and had sold clothing to the defendant, on a credit of six months; and, that there was a balance due them of $ 317 85 cents. The prayer was for a he exeat and account. Chancellor Kent said, " to sustain a bill for an account, there must be mutual demands, and not merely payments by way of set-off. A single matter cannot be the subject of an account. There must be a series of transactions on one side, and payments on the other."
Apply to the case before us, any of the tests established by these authorities, and it will be seen at once, that equity has nothing to do with it. There must be mutual demands. No such thing here; but, on one side, a demand for work and labor; on the other, payments and set-offs alone. " A single matter cannot be the subject of an account; " there must be a series of transactions. Here, the building of the house is the single matter which gives rise to the whole controversy. The principle of interference is, that Courts of Law either cannot give a remedy, or cannot give so complete a remedy as equity. In the case before us, I think, a Court of Law cannot only give a remedy, but a more complete remedy than a Court of Equity. It is a simple matter of contract, and work and labor; no want of evidence; no discovery sought. The plaintiff says he has built the house according to contract, and must be paid. The defendant says he has done his work badly; has left it unfinished; has broken his contract; and has received as much as he deserves. Now, this seems to me, a case peculiarly apt for the decision of a jury from the country; men who understand these matters; and who, with the witnesses before them, with counsel to assist, and a Court to superintend the whole, would settle fairly such a matter as this, in one hour. Whereas, in equity, it has been depending nineteen years. The commissioner charges 76 hours, making a fee of $ 57. The record is stuffed with innumerable depositions; and the costs of the whole cannot be less than $ 200. Is not this monstrous? And, if we open the door of a Court of Equity to such a case as this, do we not let in every possible contract, which stipulates that something shall be done on one side, and something paid on the other? It is most clear, therefore, to me, that this is not such matter of account, as equity ought to entertain.
Does the certificate give us jurisdiction? This was a paper given by Smith to Marks, after the building of the house, by which he acknowledged that he had received full satisfaction for the work. If this was true, the plaintiff has no claim. If it was false, he has volunteered his aid to enable the defendant, by his falsehood, deliberately told, to deceive others; and, forgetful of the maxim, that " he who has done iniquity, shall not have equity," would found on this very iniquity, a right to the assistance of an equitable tribunal. The bare statement of the proposition is sufficient; and I am clear, that the decree of the Chancellor should be affirmed.
Decree affirmed.
MECHANIC'S LIEN.
I. Definition.
II. Object, Origin and Nature.
A. Object.
B. Origin.
C. Nature.
III. Substantial Compliance.
IV. Construction of Statutes.
V. Property Subject to Lien.
A. Public Property.
B. Private Property.
1. In General.
2. Building for Joint Purpose.
3. Buildings on Separate Lots.
4. Material Not Used.
5. Surplus after Paying Prior Lien.
6. Rents and Profits.
7. Real Estate of Feme Covert.
8. Machinery.
9. Several Buildings on Same Lot.
VI. Estate or Interest Subject to Lien.
A. In General.
B. Separate Estate of Feme Covert.
VII. Who May Subject Property to Lien.
A. Vendee.
B. Married Woman.
C. Contractors.
D. Subcontractors.
VIII. Contract under Which Lien Acquired.
A. In General.
B. Oral Contract.
C. Written Contract.
D. Ratification of Contract.
IX. Requisites of Lien.
A. In General.
B. Notice to Owner.
1. Object of Notice.
2. By Subcontractor.
3. By Materialman.
4. Sufficiency of Notice.
C. Filing and Recordation of Claim.
1. In General.
2. Time of Filing.
3. Where to Be Recorded.
4. Proof of Recordation.
5. Filing Contrary to Law--Effect.
6. Burden of Proof to Show Compliance.
7. Account and Statement of Claim.
a. In General.
b. What May Be Considered in Determining Sufficiency.
c. Name of Owner.
d. Description of Property.
(1) Object.
e. Subscribing Account.
f. Verification.
g. Miscellaneous Instances of Account.
(1) Entire Contract--Extra Work.
(2) Buildings, on Distinct Lots.
(3) Several Houses.
(4) Balance of Account.
(5) Gross Sum for Repairs.
(6) Estimates Furnished.
(7) Term " Due" Construed.
X. Amount Secured by Lien.
A. When Owner Fails to Record Contract.
B. To a Subcontractor.
C. Reservation by Owner Not for Benefit of Subcontractor.
D. For Extra Work.
E. Where Amount Due by Instalments.
F. Recoupment.
XI. Assignment of Lien.
XII. Priorities.
A. In General.
B. Time of Commencement of Lien.
1. In General.
2. Proof of Time.
C. Prior Deeds of Trust.
D. Subsequent Deeds of Trust.
E. Dower.
F. Lien for Money Advanced for Building.
G. Vendor's Lien.
H. Lien of Fieri Facias.
I. Liens against Legal and Equitable Title.
J. Lien of Judgment against Grantor in Unrecorded Deed.
XIII. Waiver and Loss.
XIV. Merger.
XV. Pleading and Practice.
A. Methods of Enforcing Lien.
1. By Bill in Equity.
2. By Motion.
B. Parties.
1. In General.
C. The Bill.
1. In General.
2. Time to Be Filed.
3. Alleging Perfection of Lien.
4. Alleging Failure to Pay Estimate.
5. Unnecessary to Allege Approval of Contract by Contractor.
6. Unnecessary to Allege Any Part Due.
7. When Allegations Denied Must Be Proved.
D. New or Supplemental Bill.
E. Cross Bill.
F. Directing an Issue.
G. Decree of Judgment.
1. May Be Personal.
2. Decree for Sale Not Final.
H. When Judgment Will Not Be Reversed.
I. Appeal.
J. Sale.
1. When for Cash.
2. When on Credit.
3. Sale of Machinery and Other Property May Be Separate.
XVI. Evidence.
A. In General.
B. Receipt.
I. DEFINITION.
A lien is a hold or claim which one person has upon the property of another as a security for some debt or charge. Central City Brick Co v. Norfolk, etc., R. Co., 44 W.Va. 286, 28 S.E. 926. It is the ligament or tie which binds certain property to a particular debt for its payment or satisfaction. U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769.
Creature of Statute.--And the mechanic's lien on buildings, etc., and the land on which they are erected, as we know it, is the creature of statute, and was unknown at common law or in equity. U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769, and see infra " Origin."
II. OBJECT, ORIGIN AND NATURE.
A. OBJECT. --The statute was designed to give security to those who, by their labor, skill, and materials, add value to property by a pledge of the interest of their employer for their payment; and for that purpose it subordinates all other interests acquired subsequent to the commencement of their work. Bank v. Dashiell, 25 Gratt. 616; Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
B. ORIGIN. --What is known as the " mechanic's lien" on real estate and buildings is the creation of statute. It was unknown at common law, but the right given by statute to enforce it in a court of equity carries with it all the rights incident to that court's principles and rules and its methods of procedure. U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769; Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241; Shackleford v. Beck, 80 Va. 573; S. V. R. Co. v. Miller, 80 Va. 821; Stout v. Golden, 9 W.Va. 231; Mayes v. Ruffners, 8 W.Va. 384; Niswander v. Black, 50 W.Va. 188, 40 S.E. 431; McGugin v. Ohio River R. Co., 33 W.Va. 63, 10 S.E. 36; Central City Brick Co. v. Norfolk, etc., R. Co., 44 W.Va. 286, 28 S.E. 926.
C. NATURE.
A Specific Lien.--The lien is specific; that is, it is confined to the particular building or structure upon which the labor was done or the materials were furnished; thus, a single lien for materials furnished for repairing a house and the fence. The claimant may have a lien upon the house for the materials furnished for the repairs upon the house, and he may have another lien for materials used for the construction of the fence; but he has no lien upon the house for materials used in building the fence, and he has no lien upon the fence for materials used upon the house." Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241, quoting Jones on Liens, vol. 2, § 1310.
Lien Not Created by Contract, but by Furnishing Material or Doing Work.--It is not the contract for erecting or repairing the building which creates the lien, but it is the use of the materials furnished and labor expended by the contractor, whereby the building becomes a part of the freehold. that gives the materialmen and laborers their liens under the statute. Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241. Nor does the statute give the mechanic the right to his debt, but merely furnishes a remedy for its collection. Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241.
III. SUBSTANTIAL COMPLIANCE.
A mechanic's lien is of statutory creation, and can be maintained by a substantial observance of, and compliance with, the requirements of the statute. Stout v. Golden, 9 W.Va. 231; McGugin v. Ohio River R. Co., 33 W.Va. 63, 10 S.E. 36; Central City Brick Co. v. Norfolk, etc., R. Co., 44 W.Va. 286, 28 S.E. 926; Shackleford v. Beck, 80 Va. 573; S. V. R. Co. v. Miller, 80 Va. 821; Mayes v. Ruffners, 8 W.Va. 384; Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241; Niswander v. Black, 50 W.Va. 188, 40 S.E. 431; U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769; Gilman v. Ryan, 95 Va. 494, 28 S.E. 875.
IV. CONSTRUCTION OF STATUTES.
Mechanic's lien laws are opposed to common right, and confer special privileges upon one class of the community not enjoyed by others, and should receive a strict construction, and parties claiming its benefits must bring themselves clearly within its provisions. McGugin v. Ohio River R. Co., 33 W.Va. 63, 10 S.E. 36. But such a lien may be maintained by a substantial observance of, and compliance with, the requirements of the statutes. Stout v. Golden, 9 W.Va. 231; Central City Brick Co. v. Norfolk, etc., R. Co., 44 W.Va. 286, 28 S.E. 926; Shackleford v. Beck, 80 Va. 573; S. V. R. Co. v. Miller, 80 Va. 821; Mayes v. Ruffners, 8 W.Va. 384; Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241; Niswander v. Black, 50 W.Va. 188, 40 S.E. 431; U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769.
Operates Prospectively.--The Code of 1860, ch. 119, § 2, p. 567, provided for mechanic's liens only where land on which the house was to be built or repaired was in a city or town, and an agreement in writing, for the erection of a house in the country, entered into the 1st day of March, 1866, which agreement was duly recorded, is not a lien on the property, nor is it a lien under the act of the 13th of April, 1867, it having only a prospective operation. Hendricks v. Fields, 26 Gratt. 447.
V. PROPERTY SUBJECT TO LIEN.
A. PUBLIC PROPERTY. --Property which is exempt from seizure and sale under an execution upon grounds of public necessity must for the same reason be equally exempt from the operation of the mechanic's lien law, unless it appears by law itself that property of this description was meant to be included; and to warrant this inference something more must appear than the ordinary provisions that the claim is to be a lien against a particular class of property enforceable as judgment rendered in other civil actions. Hall's Safe & Lock Co. v. Scites, 38 W.Va. 691. 18 S.E. 895; Phillips v. University, 97 Va. 472, 34 S.E. 66; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S.E. 596; Manly Mfg. Co. v. Broaddus, 94 Va. 547, 27 S.E. 438.
And in Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S.E. 596, it was said: " It is contrary to public policy to allow a lien to be acquired on public property, and the mechanic's lien laws do not apply to public buildings erected by states, cities and counties for public uses, unless the statute authorizing the lien expressly so provides." Phillips v. University, 97 Va. 472, 34 S.E. 66.
University of Virginia.--The University of Virginia is public property created and used for public purposes, and its buildings and grounds are the property of the state and cannot be subjected to a mechanic's lien. Phillips v. University, 97 Va. 472, 34 S.E. 66.
Furnishing Materials.--Furnishing meterials to be used by a contractor in the erection of public improvements for a city, which meterials are so used, does not give any lien on the fund due by the city to the contractor. Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S.E. 596.
Authority to Issue Bonds Does Not Authorize Lien.--The act of January 23, 1896, authorizing the rector and visitors of the University of Virginia to issue bonds and borrow money thereon does not give a mechanic a right to a mechanic's lien thereon. Phillips v. University, 97 Va. 472, 34 S.E. 66.
Power of Supervisors.--A board of supervisors cannot give a lien upon a public building, nor does the contractor, nor do those who furnish materials, nor the artisans employed in its construction, acquire a lien of any kind upon it. Those who contract with the board of supervisors to do work for the county, or furnish materials to it, do so not upon expectation of securing their compensation by a lien, but solely upon the faith and credit of the county. Manly Mfg. Co. v. Broaddus, 94 Va. 547, 27 S.E. 438. See also, Phillips v. University, 97 Va. 472, 34 S.E. 66.
B. PRIVATE PROPERTY.
1. In General.
Entire Lot in Town Considered Necessary.--The statute gives a lien not only on the building, but also on " so much land therewith as shall be necessary for the convenient use and enjoyment of the premises." In the absence of proof to the contrary, a lot in a town, such as is described in this case, is necessary to the convenient and reasonable enjoyment of the building put upon it. Pairo v. Bethell, 75 Va. 825.
And where material is furnished and work done under the second section, ch. 139, of Acts 1872-3, p. 460, must, in the language of the statute, be furnished and done " by virtue of a contract with the owner or his agents; " and the lien attaches to the lot or lots on which the building is erected, as well as to the mere building itself. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
Material Incorporated in Building.--If material is used in the building, and the owner gets the benefit thereof, the lien attaches without regard to the contract, unless it has been recorded, under § 5, ch. 75, Code. McConnell v. Hewes, 50 W.Va. 33, 40 S.E. 436.
And the object of this provision is to secure materialmen when the material furnished by them has become a part of the building beyond reclaimer, and also to prevent collusion between the contractor and the owner to defraud the materialmen, and not to destroy the owner's security under his contract. McConnell v. Hewes, 50 W.Va. 33, 40 S.E. 436.
2. Building for Joint Purposes. --A stack erected in a building used as a pork-house, for the joint purposes of pork-house and generating steam and running machinery in a distillery attached thereto, and which can be used as a distillery only in connection with the pork-house, must be regarded as a structure necessary to both establish ments and as a part thereof, although the pork-house may be used independently of the distillery; and a mechanic has a lien on both establishments for the construction of the stack by virtue of the act of the General Assembly passed February 2, 1853, for the benefit of the mechanics of Wheeling. Bodley v. Denmead, 1 W.Va. 249.
3. Buildings on Separate Lots. --Mrs. S. bargained with general contractors, D. & W., to build two houses on two distinct lots, for an entire price, and the latter bargained with a subcontractor, D., to furnish materials for the entire work, and the work was done and the materials furnished accordingly. Held, the lien of the general contractors and of the subcontractor is joint on both houses, under Code 1873, ch. 115, § 3. Sergeant v. Denby, 87 Va. 206, 12 S.E. 402. And where separate buildings, though in one block, are erected under separate and independent contracts, no lien can attach under such contracts to all the buildings. Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241.
4. Material Not Used. --Materialmen who furnish material to contractors do so at their own risk, unless such material is incorporated in the building for which it is furnished, or they notify the owner of the building in advance that they will look to him for payment therefor, and he acquiesces therein, and receives the material with such condition attached. In the latter case, he, and not the contractors, becomes the purchaser of the material. McConnell v. Hewes, 50 W.Va. 33, 40 S.E. 436.
Estimates to Be on Labor and Material Used.--In a written contract, it is provided that certain contractors will erect a building on a certain lot for the owner thereof, for a fixed sum, payable in instalments on estimates and certificates of the architects as the work progresses. Estimates must be on the labor and material actually used in the building, and cannot be extended to include material not so used, although in course of preparation for such use. McConnell v. Hewes, 50 W.Va. 33, 40 S.E. 436.
Default of Contractor.--A materialman who furnishes material to the contractors can have no lien on such building if the material is not incorporated therein by reason of the default of the contractors. McConnell v. Hewes, 50 W.Va. 33, 40 S.E. 436.
5. Surplus after Paying Prior Lien. --Where A agrees to convey land to B, a married woman, who takes possession and builds thereon, and the mechanic who does the work takes the proper steps and secures his lien upon it after which time the vendor conveys the land to B, reserving a lien thereon for the purchase money, which he enforces, any surplus remaining after satisfying his lien cannot be subjected to the mechanic's lien, it having become the separate personal estate of B. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
6. Rents and Profits. --There may be a mechanic's lien on the rents and profits of the separate real estate of a married woman, when she or her agents have made the contract with the mechanic for building. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
7. Real Estate of Feme Covert. --There can be no mechanic's lien on the real estate of a married woman, when she has not a separate estate therein. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
8. Machinery. --All machinery and apparatus of a permanent character, and essential to the purposes for which a building is erected, although the connection between them is such that it may be severed without physical or lasting injury to either, may be subjected to a valid mechanic's lien. Haskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S.E. 878.
May Be Subjected Separate from Building.--Machinery of a permanent character may be subjected to a mechanic's lien without subjecting the buildings in which it is located and for the object for which the building is constructed and the machinery is essential. Haskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S.E. 878.
9. Several Buildings on Same Lot. --When labor is performed or materials furnished, under one contract, upon several buildings, all situate upon one lot of land, belonging to the contracting owner, the lien attaches to all the land for the whole value of the labor performed, and it is immaterial whether the contract specifies one sum for all the work or separate amounts for each building. Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241.
VI. ESTATE OR INTEREST SUBJECT TO LIEN.
A. IN GENERAL. --The owner of land, with whom or with whose agent the contract must be made under our statute, is not simply the legal owner, but it includes also an equitable owner; nor need he be the owner in fee, he may own any interest in the land, but the mechanic's lien will, of course, be confined to a lien on his interest in the land. But unless the statute so provides, the consent of the holder of the legal title that the person, who has agreed to purchase the land of him, shall or may erect a building upon it, will not make the interest of the legal owner of the land liable to the mechanic's lien arising from the contract by the mechanic with the party who has agreed to purchase the land. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
B. SEPARATE ESTATE OF FEME COVERT. --By a contract with a mechanic to build a house on her separate real estate or by a contract with anyone to furnish materials for such building, she may create a lien, under our law, which will render the rents and profits of the building so erected, so long as the marriage continues, liable to the payment of said lien, in preference to any lien which she and her husband could subsequently create by uniting in a deed. But such lien could only be enforced, as other debts of a married woman are enforced, by renting out the property from year to year during the continuance of the marriage. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
VII. WHO MAY SUBJECT PROPERTY TO LIEN.
A. VENDEE.
Power to Bind Interest of Vendor.--The lien of a mechanic is subordinate to that of a vendor of land, on which a building is erected, for the unpaid purchase money, and the court cannot, in the absence of any statutory provision, undertake to give to a mechanic a lien against the previous vendor's lien on any part of the purchase money for which the lot and building might sell because of its enhanced value by reason of the erection of the building. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
B. MARRIED WOMAN. --By a contract with a mechanic to build a house on her separate real estate, or by a contract with one to furnish materials for such a building, she may create a lien, under our law, which will render the rents and profits of the building to be erected, so long as the marriage continues, liable to the payment of said lien, in preference to any lien which she and her husband could subsequently create by uniting in a deed. But such lien could only be enforced, as other debts of a married woman are enforced, by renting out the property from year to year during the continuance of the marriage. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
C. CONTRACTORS. --The term " general contractor," as used in the act of July 11, 1870, entitled " an act in relation to mechanics' liens," includes all persons furnishing materials for or doing work upon a building, under a contract made by such persons directly with the owner of the building. M. & M. Sav. Bank of Norfolk v. Dashiell, 25 Gratt. 616; Central City Brick Co. v. Norfolk, etc., R. Co., 44 W.Va. 286, 28 S.E. 926.
And where lumber is furnished to a railroad company to be used in the construction of tunnels, buildings, etc., the person furnishing it is a general contractor within the meaning of the mechanic's lien law. Code 1873, ch. 115. Boston & Co. v. C. & O. R. Co., 76 Va. 180.
But the provision that every subcontractor or other person who shall, in pursuance of the purposes of the original contract between the owner and the original contractor, perform any labor, etc., shall have a lien, does not extend to a subcontractor of a subcontractor. McGugin v. Ohio River R. Co., 33 W.Va. 63, 10 S.E. 36; Richardson v. Norfolk, etc., R. Co., 37 W.Va. 641, 17 S.E. 195.
Incipient Lien.--Furnishing materials creates an incipient lien, but to perfect it the general contractor must, in conformity with Code 1873, ch. 115, § 3 to § 11 inclusive, within the prescribed time, file in the county or corporation court of the county or corporation in which is situated the property on which lien is sought to be secured, and in the clerk's office of the chancery court of Richmond city, where the property is in said city, a true account of the work done, or materials furnished, sworn to by the claimant or his agent, with a statement attached, signifying his intention to claim the benefit of the lien, which is to be recorded by the clerk. Boston & Co. v. C. & O. R. Co., 76 Va. 180.
D. SUBCONTRACTORS. --A subcontractor in the second degree, who shows no privity of contract with the owner of the land on which a building is erected, or with his duly authorized agents, who furnishes material, or labor in the erection or construction of the building, can acquire no lien on the lot or building by giving the notice provided for in § 5, ch. 75. Code W. Va., within thirty days after the labor was performed or material furnished. McGugin v. Ohio River R. Co., 33 W.Va. 63, 10 S.E. 36.
And, under ch. 115, Code 1873, § 8, secures to a subcontractor the benefit of lien given general contractor by § 4, provided notice is given by former before lien is discharged. This remedy is additional to that conferred by § 5, which gives to such contractor, upon compliance with its requirements the right to charge owner personally. Under § 8, regard is had to state of accounts between own and general contractor; under § 5, none is had. S. V. R. Co. v. Miller, 80 Va. 821. VIII. CONTRACT UNDER WHICH LIEN ACQUIRED.
A. IN GENERAL. --A mechanic's lien is a creature of statute, and must have its foundation in a contract, with which it must correspond. Sergeant v. Denby, 87 Va. 206, 12 S.E. 402.
But it is immaterial whether the contract be written or oral, to create such lien. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965.
Must Be by Contract of Owner or Agent.--The material furnished and work done under § 2, ch. 139, Acts 1872, p. 460, must, in the language of the statute, be furnished and done " by virtue of a contract with the owner or his agents; " and the lien attaches to the lot or lots on which the building is erected, as well as to the mere building itself. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
Persons Having No Privity Not Embraced.--While § 7, ch. 64, Acts 1882 (Warth's Code 1887, ch. 75), gives a lien on all the real estate and personal property of an incorporated company doing business in this state to every workman, laborer, or other person who does any work or performs any labor for such company by virtue of any contract, written, verbal, express or implied, with such company, for the value of the work so done or labor so performed. Richardson v. Norfolk & W. R. Co., 37 W.Va. 641, 17 S.E. 195.
Yet the meaning of this section cannot be extended to embrace persons who have no privity of contract with the company, but must be confined to those who have such contract, and who, by virtue thereof, do the work and perform the labor for which the lien is claimed. Richardson v. Norfolk & W. R. Co., 37 W.Va. 641, 17 S.E. 195.
B. ORAL CONTRACT. --The mechanic's lien exists, and may be enforced, where the work is done under a verbal contract with the owner. M. & M. Sav. Bank of Norfolk v. Dashiell, 25 Gratt. 616.
C. WRITTEN CONTRACT. --Where the contract is in writing, a lien may be acquired under § 2, ch. 115, of Code 1873, by the claimant having the contract recorded, in which case the remedy would be by a bill in equity, or it may be acquired or secured by the claimant under the act of 1870, by filing in the proper clerk's office and having recorded a true account of the work done or materials furnished, sworn to by the claimant or his agent, with a statement attached signifying his intention to claim the benefit of the lien, and setting forth a brief description of the property, and this lien may be enforced by bill or motion. Pairo v. Bethell, 75 Va. 825.
And ch. 115 of the Code is much more comprehensive than ch. 117 of the Code 1873, which is not repealed nor amended; it extends to a larger class of persons, and prescribes a different mode of acquiring the lien; it applies to contracts written as well as oral, and the remedy is by motion as well as by bill in equity. Pairo v. Bethell, 75 Va. 825.
D. RATIFICATION OF CONTRACT. --Where a subcontractor has knowledge of the insolvency of the contractor, and calls on the owner to assist in the collection of his debt, and files a mechanic's lien, such acts amount to a ratification of the contract. University v. Snyder, 100 Va. 567, 42 S.E. 337.
IX. REQUISITES OF LIEN.
A. IN GENERAL. --Chapter 75 of the Code creates the mechanic's lien in certain cases, on certain conditions; and § 4 of such chapter, among other things, provides that such account, to be effectually filed for record as a lien, must be sworn to by the person claiming the lien or by some person on his behalf. Such oath is an element essential to the creation of the lien, and, to be effectual, must be in writing, as a part, in some way, of the paper writing filed for record. Lockhead v. Berkeley Springs, etc., Co., 40 W.Va. 553, 21 S.E. 1031.
So, where a party seeks to create a mechanic's lien for material furnished to a contractor, to be used on the construction of a house, he must comply substantially with the requirements of the statute, in order to create a lien on the property on which such house is erected. Central City Brick Co. v. Norfolk & W. R. Co., 44 W.Va. 286, 28 S.E. 926. And see infra, " Substantial Compliance."
And if the time limited by the statute is suffered to elapse before these important things are done, more especially if intervening rights in favor of a third party have attached, the lien cannot be successfully asserted. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965.
B. NOTICE TO OWNER.
1. Object of Notice. --The object of the notice is to impart information to the owner of the amount and character of the claim intended to be fixed as a lien upon the property, so that he may protect himself in his future dealings with the contractor. Mertens v. Cassini Mosaic & Tile Co., 53 W.Va. 192, 44 S.E. 241; S. V. R. Co. v. Miller, 80 Va. 821. And to warn and protect all subsequent purchasers or incumbrancers. Boston & Co. v. C. & O. R. Co., 76 Va. 180; Shackleford v. Beck, 80 Va. 573.
2. By Subcontractor.
When to Be Served.--Notice may be furnished owner by subcontractor at any time between doing the labor or furnishing the materials, and twenty days after building is completed or work otherwise terminated. But affidavit must be furnished within said period of twenty days. S. V. R. Co. v. Miller, 80 Va. 821; Norfolk, etc., R. Co. v. Howison, 81 Va. 125; Roanoke Land, etc., Co. v. Karn, 80 Va. 589.
3. By Materialman. --Under the provision of the second and fifth sections of ch. 75, W.Va. Code 1886, where the owner pays the contractor for the erection of a building pursuant to and in accordance with the obligations of his original contract with the contractor, after its completion, a party who furnished materials to the contractor acquires no lien by giving notice in writing to the owner after such payment of the amount of his demand, and that he claims the benefit of the lien created by said chaper, although the notice was given within thirty days after the material was furnished. In such case, no lien in favor of the materialman ever attached. McKnight v. Washington, 8 W.Va. 666.
Materialman Must Take Notice of Contract between Contractor and Owner.--Under a proper construction of the second and fifth sections of ch. 75, W.Va. Code 1886, the materialman is bound to take notice of the contract between the " owner" and the " contractor," not only as to the material but as to the price to be paid by the owner for the construction of the house or building and the time or times the same is to be paid by the owner. McKnight v. Washington, 8 W.Va. 666.
4. Sufficiency of Notice. --Under Code 1873, ch. 115, as amended by Acts 1883-84, pp. 636, 637, in an action against the owner by the subcontractor, whose account is disputed by the general contractor, it is not sufficient for the subcontractor to show that he has served his notice and filed his account as provided by § 5, but he must also aver and prove that he has complied with his contract with the general contractor under which the materials were furnished. Kirn v. Champion Iron Fence Co., 86 Va. 608, 10 S.E. 885.
Account and Statement.--Where the account is sufficient, and a copy thereof, together with a statement of the intention to claim the lien, is served on the owner within the time prescribed by the statute, this is a sufficient notice to the owner, under § 2477 of the Code. Taylor v. Netherwood, 91 Va. 88, 20 S.E. 888.
Claim and Motion--Continuance.--Where a verified account of the number and price of materials furnished is filed with claim for lien on a certain building, " with so much land therewith as shall be necessary for convenient use of the premises," and notice is served of claim for lien and of motion to enforce the same at first day of next term, and the motion was on that day docketed and continued until the sixth day of the term, when it is heard, the proceedings conform to the statute and are regular. Lester v. Pedigo, 84 Va. 309, 4 S.E. 703.
Account and Affidavit Not to Show Notice.--When the account is filed with the clerk of the county court, as provided in § 4 of ch. 75, it is not essential, and not required by that section, that the account and affidavit so filed shall show on its face the fact of service of the account and notice on the owner. Such fact may be proved under proper allegations in the bill. Niswander v. Black, 50 W.Va. 188, 40 S.E. 431.
C. FILING AND RECORDATION OF CLAIM.
1. In General. --The filing of the account is the initial and one of the most important steps in the establishment of a mechanic's lien. A substantial compliance with this provision of the statute has always been regarded as essential to the creation of the lien, and as necessary for the protection of owners purchasers, and other lien creditors. Taylor v. Netherwood, 91 Va. 88, 20 S.E. 888; Gilman v. Ryan, 95 Va. 494, 28 S.E. 875.
And the intention is that the mere inspection of a record, to be found at a particular place, shall disclose all the information necessary in order to enable those interested therein to determine as to the existence of liens on the property. The record should be sufficient to give in itself the information intended by the recordation, and should not be made to depend upon verbal explanations of its meaning, and the record cannot be supplemented by parol evidence after suit brought to enforce the lien. Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241; Niswander v. Black, 50 W.Va. 188, 40 S.E. 431.
What to Be Filed.--Under ch. 115, Code 1873, a mechanic may either file for recordation his written contract if there be one, and if not, he may file a true account of the work done or material furnished under his affidavit, with a statement declaring his intention to claim the benefit of the lien, and setting forth a brief description of the property, and he may proceed under either mode, whether the contract be in writing or not. M. & M. Sav. Bank of Norfolk v. Dashiell, 25 Gratt. 616; Shackleford v. Beck, 80 Va. 573.
Effect of Failure to Record Contract.--Failure of the owner to record his contract with the principal contractor does not render his property liable to the claims of any laborer, mechanic or materialman, except such as have so complied with the provisions of the statute as to entitle, them to their liens. Niswander v. Black, 50 W.Va. 188, 40 S.E. 431.
And the contractor, having failed to secure a lien on the house by his omission to fulfil the requirements of the statute, a purchaser of the house from the owner is not affected with liability for the contractor's claim by reason even of actual notice of the account thereof. Shackleford v. Beck, 80 Va. 573.
2. Time of Filing.
Time Runs from Last Item.--Where a general contractor furnished lumber to a railroad company, the last item being dated September 8, 1873, and he files his claim December 27, 1873, it was held that the lien was invalid, not being filed within the time prescribed by statute. Code 1873, ch. 115. Boston & Co. v. C. & O. R. Co., 76 Va. 180.
Where Considered Completed before Finishing Touches Are Put on.--A contract for erecting a building provides that it shall be considered completed before " the finishing touches" are put on it. Held, that ninety days, within which the statute allows a mechanic's lien to be filed, commence from the time of practical completion and not from the actual completion. Acts 1883-84. p. 636. Trustees of Franklin St. Church v. Davis, 85 Va. 193, 7 S.E. 245.
When Work Stopped by Default of Owner.--That provision of the Mechanic's Lien Act of July 11, 1870, which requires the contractor, etc., to file, within thirty days after the completion of the work, an account and statement, is construed to mean actual completion, and does not apply when the work has been stopped by default of the owner of the property. M. & M. Sav. Bank of Norfolk v. Dashiell, Gratt. 616.
3. Where to Be Recorded. --Where lumber was furnished by a general contractor to a railroad company, to be used in the construction of their buildings, tunnels, etc., and which was used in several different counties and cities of the state, it was held that, in order to be a valid mechanic's lien on the property of the company, the papers must be recorded in every county and city in which the railroad owned property. Boston & Co. v. C. & O. R. Co., 76 Va. 180. Quoere, are railroad companies em braced in the provisions of Code 1873, ch. 115, § 3 to § 11 inclusive.
And where lumber is furnished by a general contractor to a railroad company, which uses it in the construction of a tunnel in the city of Richmond and a wharf one mile below the city, the wharf is not within the jurisdiction of the city, for the purpose of filing, recording and enforcing mechanic's liens. Boston & Co. v. C. & O. R. Co., 76 Va. 180.
4. Proof of Recordation. --On a motion, proof of the recordation of the account and statement, under the statute. is proper, if such evidence is afforded not to contradict or vary the written contract, but merely to prove the signing of the contract by the parties and the performance of it on the part of the builder. Pairo v. Bethell, 75 Va. 825.
5. Filing Contrary to Law--Effect. --A subcontractor files a mechanic's lien before completion of the work, contrary to Code, § 2476. Held, that he is liable to an action for damage for injury thereby done the contractor. In such action, the declaration should charge some special damage to plaintiff, as the language of the alleged lien does not necessarily import injurious defamation; but it is not necessary to give the name of any whose custom has been lost to the plaintiff, nor to state that the alleged lien has been ended by limitation or degree. Moore v. Rolin, 89 Va. 107, 15 S.E. 520.
6. Burden of Proof to Show Compliance. --The provisions of the statute are indispensable to the creation of the lien, and hence, if any one be not complied with, no lien is acquired. It is therefore incumbent upon the party asserting a lien under the statute to show that he has complied with every essential requirement of the statute; and unless such compliance is shown, his claim must be rejected. Shackleford v. Beck, 80 Va. 573; Davis v. Alvord, 94 U.S. 545; S. V. R. Co. v. Miller, 80 Va. 821; Trustees of Franklin St. Church v. Davis, 85 Va. 193, 7 S.E. 245.
7. Account and Statement of Claim.
a. In General. --" Statutes which require the filing of a true account of the work done or materials furnished necessarily imply an itemized or detailed statement of the transactions which are the foundation of the lien, and the particulars of the lien serve for the protection of the contractor, and of purchasers and others who may become interested in the property subject to the lien. The chief purpose, however, which the account serves, is to give the owners notice of the amount and character of the claim, so that he may protect himself in his future dealings with the contractor. To serve this purpose, the claim should show what it is for, --whether work or materials, --and a notice which does not show that is defective. Stating a balance due is not sufficient." Niswander v. Black, 50 W.Va. 188, 40 S.E. 431. And when an account extends through a considerable period, the time begins to run from the last item. Osborne v. Bigstone Gap Colliery Co., 96 Va. 58, 30 S.E. 446.
b. What May Be Considered in Determining Sufficiency. --In ascertaining whether the account which is required to be filed and recorded to create the lien is a substantial compliance with the statute in respect to designating the name of the owner of the property, the account proper, and the sworn statement annexed thereto may be read together. U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769.
c. Name of Owner. --The statute contemplates a positive designation of the name of the owner, if known to the person seeking the lien. Mayes v. Ruffners, 8 W.Va. 384.
d. Description of Property. --Upon a bill filed to enforce a mechanic's lien, the quantity of land necessary for the convenient use of the building is, sufficiently described by reference to an exhibit filed with the bill, which gives an adequate description of the land, and seeking to enforce the lien against the land thus described. Richlands, etc., Co. v. Hiltebeitel, 92 Va. 91, 22 S.E. 806.
(1) Object.--The object of requiring a description is to inform the owner upon which of his property the lien is claimed, and to give notice thereof to purchasers and creditors, so that they may identify the property and protect themselves against the lien. If the property can be reasonably identified by the description given, it is all that the law requires. Taylor v. Netherwood, 91 Va. 88, 20 S.E. 888.
e. Subscribing Account. --An account claimed as a lien must be subscribed to by the person claiming the lien, or someone in his behalf, under the provisions of § 3, ch. 139, Acts of 1872-3. Stout v. Golden, 9 W.Va. 231. But subscribing the affidavit to the account is not the subscribing of the account contemplated by the statute; the account itself must be subscribed. Mayes v. Ruffners, 8 W.Va. 384.
f. Verification. --A claim for a mechanic's lien, when filed, should be verified; and it should appear upon its face to have been verified, before it can be made the basis of the proceeding to enforce the claim based upon it. Lockhead v. Berkeley Springs, etc., Co., 40 W.Va. 553, 21 S.E. 1031.
No Particular Form Prescribed.--No particular form of verification is prescribed, and the certificate of a notary at the foot of the account filed that the contractor personally appeared before him, in his county or city, and made oath to the correctness of the account, is a sufficient verification under the statute. Taylor v. Netherwood, 91 Va. 88, 20 S.E. 888.
Method of Foreign Verification.--If an affidavit be made before any officer of another state or county, such as the District of Columbia, it is not duly authenticated for record until it is subscribed by such officer, and there be annexed thereto a certificate of the clerk or other officer of a court of record of such state or county, under an official seal, verifying the genuineness of the signature of the first-mentioned officer, and his authority to administer an oath. Code, § 31, ch. 130. Lockhead v. Berkeley Springs, etc., Co., 40 W.Va. 553, 21 S.E. 1031.
g. Miscellaneous Instances of Account.
(1) Entire Contract--Extra Work.--Where the work is contracted for as an entirety for a specific amount, and if this is so set out in the account filed all the information is given that is needed, or can reasonably be required. If extra work is done, it is sufficient to set out each item of the extra work and the price thereof. Taylor v. Netherwood, 91 Va. 88, 20 S.E. 888.
(2) Buildings on Distinct Lots.--Where a contract has been made which estimates or fixes the price of materials furnished and work done upon each of two or more buildings, on disconnected lots, an account which claims the aggregate price as a lien upon all of the lots is not a substantial compliance with the statute. And in the absence of an entire contract, an account for furnishing and hauling sand, and hauling bricks, as a basis of a mechanic's lien, should show the amount of sand furnished and hauled and the prices charged therefor, and the quantity or number of bricks hauled and the prices charged therefor. Gilman v. Ryan, 95 Va. 494, 28 S.E. 875.
(3) Several Houses.--An account which simply charges " for materials furnished and work done" in plastering certain enumerated houses, or in granolithic work at those houses, or for furnishing and hauling sand and hauling bricks for the construction of those houses, is not sufficient. Gilman v. Ryan, 95 Va. 494, 28 S.E. 875.
Building Must Be Specified.--A three story building on a corner, at the intersection of an avenue and street, and another building, two stories high, built at a different time, but adjoining the first mentioned, constitute a block called the " Harvey Building," in the city of Huntington. P contracted with H, the executor of the deceased owner of the property, to alter and repair each of said buildings, but by separate agreement in writing respectively relating to each of said houses, executed on different dates, and for different sums, to be paid to the contractor. The contracts were duly recorded before any labor was performed or materials furnished for either of the buildings. The defendants performed labor upon and furnished materials, under contracts with P. for the alteration and repair of the buildings, provided for in the contracts between P and H. The subcontractors assert in this suit their demand against P for the labor and materials as a lien upon the property; but their accounts filed therefor do dot specify upon which of the buildings or parts of the " Harvey Building," or block, the labor was performed, or for which the materials were furnished. Held, the said accounts are insufficient, and cannot be enforced as liens on the property. Mertens v. Cassini Mosaic & Tile Co. (W. Va.), 44 S.E. 241.
(4) Balance of Account.--The statute requires that a contractor seeking to secure the benefit of its provisions shall file in the clerk's office an account (which is an itemized or detailed statement of the transactions to which it relates) of work done and materials furnished; and, therefore, a paper in the following words, " To balance of account rendered for work and labor done and materials furnished for your house," is not sufficient to create the lien provided by the statute. Shackleford v. Beck, 80 Va. 573.
(5) Gross Sum for Repairs.--Where a gross sum has been agreed for repairs to, or improvements on a building, an account which states the agreed sum, but omits credits which are known to the owner, but of which the contractor has not accurate information, is a sufficient compliance with the statute which requires " a true account" to be filed as the basis of a mechanic's lien, especially where no injury is done to the owner. Rison v. Moon, 91 Va. 384, 22 S.E. 165.
(6) Estimates Furnished.--When an account purporting to be an itemized account of materials furnished to a principal contractor for building a house, amounting in the aggregate to the sum of $ 886.75, is filed with the clerk of a county court. and served with notice, upon the owner, under the provision of ch. 75, Code, which account contains one item, " Estimate furnished, $ 485," such account and notice are not sufficient, under that chapter, to entitle the materialman to his lien for the item of $ 485. Niswander v. Black, 50 W.Va. 188, 40 S.E. 431.
(7) Term " Due" Construed.--Section 4 of ch. 75 of the Code, which requires a just and true account of the amount due, after allowing all credits, to be sworn to and filed for record, uses the term " due" in the sense of an existing liability, without reference to whether it be then matured and enforceable by suit or not matured and not then enforceable by suit. U.S. Blowpipe Co. v. Spencer, 40 W.Va. 698, 21 S.E. 769.
X. AMOUNT SECURED BY LIEN.
A. WHEN OWNER FAILS TO RECORD CONTRACT. --Where an account has been properly filed by a laborer, mechanic or materialman, and the owner has failed to limit his liability by so recording his contract, then his property becomes liable for the whole of such lien, without regard to the amount that was to be paid by the owner to the contractor. Niswander v. Black, 50 W.Va. 188, 40 S.E. 431.
B. TO A SUBCONTRACTOR.
Amount Limited by Original Contract.--A subcontractor's remedy is limited in its extent by the terms of the original contract between the owner and contractor, and the amount which can be secured by a subcontractor is limited to that due from the owner to the contractor. Mertens v. Cassini Mosaic & Tile Co., 53 W.Va. 192, 44 S.E. 241.
And the fact of the general contractor's failure and the owner's necessity to complete the work does not affect the owner's liability for the amount due the subcontractor for labor or materials. S. V. R. Co. v. Miller, 80 Va. 821.
But where, notice and affidavit have been furnished, as required by law, by subcontractor to owner, the latter is liable to the former for the amount named in the affidavit, regardless of the state of accounts between the owner and general contractor. Acts 1874-5, § 5, p. 437; R. L. I. Co. v. Karn, 80 Va. 589; N. & W. R. Co. v. Howison, 81 Va. 125.
Where Owner Must Protect Subcontractor.--The owner of a building in course of construction is under no obligation to protect the interest of a subcontractor unless the latter has complied with the provisions of the statute (Code, § 2479, as amended by Acts 1893-4, p. 523), rendering the owner personally liable to the subcontractor to the extent that such owner is indebted to the general contractor. Where, however, such personal liability has been duly created, it becomes a preferred claim, and is to be paid in full in preference to the claims of other subcontractors who have not obtained a like advantage, but have subsequently perfected their liens under § 2477 of the Code. Schrieber v. Bank, 99 Va. 257, 38 S.E. 134.
C. RESERVATION BY OWNER NOT FOR BENEFIT OF SUBCONTRACTOR. --The reservation by the owner of a percentage of the cost of construction of a building until its completion, with the right to supply any deficiency and deduct the cost from any money due or to become due under the contract, is for the benefit of the owner alone, and not subcontractor who may be thereafter employed. Schrieber v. Bank, 99 Va. 257, 38 S.E. 134.
D. FOR EXTRA WORK.
To Be Considered in Separate Controversy.--Extra work not covered or contemplated by the original contract, and which has been paid for by the owner, is to be considered a separate and distinct transaction in a controversy between the owner and the subcontractor. Schrieber v. Bank, 99 Va. 257, 38 S.E. 134.
E. WHERE AMOUNT DUE BY INSTALMENTS. --Where the contract price agreed on by the owner and the mechanic is payable by instalments, one of which becomes due before the completion of the work and a lien is filed accordingly, it is valid not only as to prior instalments, but future ones also. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965. And the court will make provision for those to become due. Iaege v. Bossieux, 15 Gratt. 83.
F. RECOUPMENT.
Substantial Completion.--If there be a substantially completed though not perfectly completed contract, the claim may be filed, and the defendant may recoup or abate from the contract the value of the failure. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965.
And, in a suit in equity to enforce a mechanic's lien, where the contractor has not completed his work, the owner is entitled to set off against the contractor's claim the sum which it would take to complete the contract and any damages sustained by the owner by reason of the delay in the completion of the contract, and these damages will not be confined to a penalty or forfeiture stipulated for in the contract. Rison v. Moon, 91 Va. 384, 22 S.E. 165.
But, under § 2476, Code 1887, a subcontractor cannot perfect his lien until the work for which he engages is done, --that is, before his contract is completed. Moore v. Rolin, 89 Va. 107, 15 S.E. 520.
Owner May Set Off Damages against Assignee.--In a suit by the assignee of a mechanic and builder to enforce the assigned iien for the price for building the house, the owner will be required to pay only the value of the building, being entitled to set off the damages for defective workmanship and material against the assignee. Iaege v. Bossieux, 15 Gratt. 83.
Owner May Set Off Discounted Notes against Subcontractor.--It is not error to allow the owner credit for notes discounted by him which were given by the contractor to other subcontractors for work done or materials furnished, nor for similar notes held by banks and taken up by owner, nor for orders drawn on the owner by the general contractor in favor of subcontractor. Schrieber v. Bank, 99 Va. 257, 38 S.E. 134.
XI. ASSIGNMENT OF LIEN.
Rights and Remedies Follow Assignment.--Where a mechanic assigns his contract to build a house, he assigns therewith his right to a mechanic's lien, and the assignee has the same rights and remedies as the assignor. Iaege v. Bossieux, 15 Gratt. 83.
XII. PRIORITIES.
A. IN GENERAL. --Under our statute, the vested rights of third persons, neither parties nor privies to the contract for building or furnishing materials, cannot be prejudiced by the mechanic's lien, and mechanics, like other persons, are bound to ascertain for themselves the nature of the interest of their employer. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
And if, after contracts are made by the owner with the parties who are to furnish materials for or do the work upon the building, and they have commenced to perform their contracts, the erection of the building is stopped by the owner, so that it is not completed, the lien in favor of the workmen and the parties furnishing the materials for compensation, for work done and materials furnished, is existing and valid, without their filing their claims in the clerk's office within thirty days from the time the work stopped, or though they do not file them. And these liens will have priority over any liens upon the building created after the work was commenced under the contracts. M. & M. Sav. Bank of Norfolk v. Dashiell, 25 Gratt. 616.
B. TIME OF COMMENCEMENT OF LIEN.
1. In General. --A mechanic may go on to work, and he has his lien from its commencement, or when he began furnishing material; and the statute gives him a lien over any creditor whose liens arise after his lien commences, without any recordation, because the law gives notice to the world that the mechanic's lien attached to the building, which lien he may enforce by filing a bill in equity within the prescribed time. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259; Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586; M. & M. Sav. Bank of Norfolk v. Dashiell, 25 Gratt. 616.
And the lien starts from the first moment when the work or delivery of material commences, even as to creditors, and certainly as to the owner. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965.
But Dent, J., in a dissenting opinion, said, " the lien attaches and the right to enforce it accrues at the completion of the contract, and when the labor has been fully performed. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
2. Proof of Time. --Mechanics and laborers asserting a lien upon real property for their work, and claiming priority over mortgagees and others who have acquired interests in the property, must furnish strict proof of all that is essential to the creation of the lien; and this rule requires them to prove when the work was commenced, and the character of the work, and when it was completed. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
C. PRIOR DEEDS OF TRUST. --If a mechanic's lien is recorded on property upon which there is a deed of trust, recorded before work began on the building or structure placed thereon, the deed of trust creditor is entitled to priority of satisfaction to the extent of the estimated value of the property without the improvements for which the lien is claimed. The value is to be estimated as of the date of sale, and may be fixed either directly by the court upon the testimony of witnesses, or by reference to a commissioner, subject to exceptions to his report. Fidelity Loan & Trust Co. v. Dennis, 93 Va. 504, 25 S.E. 546; Hudson v. Barham (Va.), 43 S.E. 189.
Deed to Secure Money for Building--Notice.--A building contract provided that part of the price should be paid in cash when the roof was erected, part in cash when the building was finished, and the balance in notes secured by deed of trust on the premises. The owner had previously obtained a loan on deed of trust on the premises, and out of it the cash payments were made to the contractor, he having actual knowledge of the facts, as well as constructive notice, the deed being on file when the contract was made. On completion of the work, the contractor accepted the notes, but he never called for his deed of trust, which, however, was nevertheless executed, and held subject to his order. Held, that a mechanic's lien afterwards filed by the contractor was subordinate to the lender's deed of trust. Wright v. VaughanVa. Dec. 662. See also, Wroten v. Armat, 31 Gratt. 228.
D. SUBSEQUENT DEEDS OF TRUST. --Where work has been commenced and material furnished under a contract, for constructing buildings, with the owner of the land on which buildings are to be erected, the mechanic's lien attaches from the time the performance of the work and furnishing materials begin, and such mechanic's lien is entitled to priority over a deed of trust subsequently executed on the same property. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
E. DOWER. --The dower interest of a married woman is paramount to a mechanic's lien. Iaege v. Bossieux, 15 Gratt. 83.
F. LIEN FOR MONEY ADVANCED FOR BUILDINGING. --A building fund company agrees to advance to one of its members money to build a house on a lot owned by him, and advance a part of the money and take a lien upon the lot and the buildings which may be erected upon it, to secure the advances made and to be made. The members then make a contract for the building of a house on the lot, with a mechanic who, to raise money faster than it can be obtained from the company, assigns the contract to a person who undertakes to advance the money; and the contract is recorded, so as to create the mechanic's lien. After the contract is recorded, the company advances money from time to time, as it had agreed to do, which is paid to the assignee in part satisfaction of his advances to the mechanic, with a knowledge on his part, that it comes from the company, and that the company claims priority of lien upon the property. The company is entitled to priority over the mechanic's lien, for its advances made after the contract was recorded, as well as for its advances made before. Iaege v. Bossieux, 15 Gratt. 83.
G. VENDOR'S LIEN. --The vendor's lien is, in this state, superior to the mechanic's lien. If A agrees to convey land to B and puts himself in possession thereof under an agreement that he will build a house thereon, and that then A will convey it to him reserving a lien on the property, and B contracts with a mechanic to build the house, and it is built, and a mechanic's lien claimed on the property and recorded under ch. 139, Acts 1872-3, p. 460, and afterwards the deed is made to the purchaser reserving such vendor's lien for the unpaid purchase money, such lien will have priority over the mechanic's lien. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
H. LIEN OF FIERI FACIAS. --The fifth section of ch. 139, Acts 1872-3, does not create a lien in favor of the furnisher of materials upon the property of the owner, but only a demand against him for what may, at the time of notice, etc., be due or unpaid to the contractor. But if prior to the furnisher of materials, proceeding under and according to said fifth section, a creditor of the contractor acquires an execution lien upon what is due, or in arrear, from the owner to the contractor, and has proceeded to enforce his execution lien against the owner, by suggestion, and summons issued thereon, and served on the owner according to law, such execution creditor, by virtue of his said lien, and proceedings by suggestion, etc., to enforce the same, is entitled, by operation of law, to be first paid his execution debt out of the money or debt due from the owner to the contractor. Stout v. Golden, 9 W.Va. 231.
I. LIENS AGAINST LEGAL AND EQUITABLE TITLE. --If the owner of the full equitable estate in land causes buildings to be erected thereon, for the cost of which a mechanic records a lien, such lien, by the terms of § 2483 of the Code, takes priority, as to both land and buildings, over all liens thereafter acquired on the lands of such owner, and also over all judgments thereafter recovered against the grantor of such owner holding the mere legal title to the land. Pace v. Moorman, 99 Va. 246, 37 S.E. 911.
J. LIEN OF JUDGMENT AGAINST GRANTOR IN UNRECORDED DEED. --The effect of § 2483 of the Code is to modify the registry law as contained in § 2465 so far as to give priority to a mechanic's lien on the lands of the grantee who has failed to record his deed over judgment subsequently obtained against his grantor. Pace v. Moorman, 99 Va. 246, 37 S.E. 911.
XIII. WAIVER AND LOSS.
Accepting Note Not Waiver of Lien.--Where a materialman, workman, laborer, mechanic, or other person, performs any labor or furnishes any material or machinery for constructing any house, mill, manufactory, or other building or structure, by virtue of a contract with the owner or his authorized agent, he shall have a lien, to secure the payment of the same, upon such house or other structure, and upon the interest of the owner of the lot of land on which the same may stand; and such lien will not be affected by the party claiming the same accepting negotiable notes for the amount of his account, which notes are not made payable after the time fixed for bringing a suit to enforce the mechanic's lien. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
And while a bill of exchange or other security, which is not maturable until more than three months from the completion of the work, whether paid or not at its maturity, might be regarded as a waiver of the lien because the party after that period would have no right under the statute to assert it, yet the acceptance of such bill of security, which matures and is protested before the expiration of three months from the completion of the work, the time, under an act of February 2, 1853, within which it must be enforced, is no waiver of such lien. Bodley v. Denmead, 1 W.Va. 249.
Payable before Expiration of Time for Filing.--Though a note is payable after the expiration of the time limited by law in which a lien must be filed, it is not waived if it be payable before the time in which action must be brought for its enforcement, for a mechanic is allowed to file the lien before his note is due. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
Payable after Expiration of Time for Filing--Offer to Surrender.--The acceptance of the notes of the debtor, payable after the time granted by the statute for filing a mechanic's lien, and maturing before the expiration of the time limited for bringing suit, will not bar a suit and recovery upon the lien if the notes are produced to be surrendered at the trial. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
Loss by Delay.--The mechanic's lien created by the Code, § 2, ch. 75, is discharged unless the person desiring to avail himself thereof, within thirty days from the time he ceases to labor on or furnish material for such building and appurtenances, file with the recorder of the county, in which the house or other building is situated, a just and true account of the amount due him, after allowing all credits, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which accounts shall be subscribed and sworn to by the person claiming the lien, or someone in his behalf. Mayes v. Ruffners, 8 W.Va. 384.
Substantial Completion Sufficient.--If a builder has completed his work according to contract in all material, substantial features, his mechanic's lien is not lost merely because they are minor, unsubstantial, unimportant omissions or defects. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965.
XIV. MERGER.
Where a mechanic secures his lien on property by filing his account, etc., in the clerk's office of the court of the county in which the property is located, and subsequently accepts a deed of trust for the amount on the property subject to his lien, the mechanic's lien is merged in the trust deed. Wroten, v. Armat, 31 Gratt. 228.
XV. PLEADING AND PRACTICE.
A. METHODS OF ENFORCING LIEN.
1. By Bill in Equity. --Where the object of the suit is to enforce an alleged mechanic's lien, the suit is one of equitable jurisdiction. Bailey Cons. Co. v. Purcell, 88 Va. 300, 13 S.E. 456.
And a court of equity, having taken jurisdiction of a suit to enforce a mechanic's lien, and having the parties before it, should proceed to the determination of all the questions between them. Rison v. Moon, 91 Va. 384, 22 S.E. 165.
2. By Motion.
Nature and Method of Proceeding.--The proceeding by motion, under ch. 115, Code 1873, is a summary remedy in equity, assimilated in some of its features to a proceeding at law; the motion may be heard without formal pleadings; the testimony is given viva voce before the court, and if objections are made to the rulings of the court, they may, it seems, be put into the record by bills of exceptions. All this is anomalous in a court of equity, but it results necessarily from the proceeding authorized, and a party has no absolute right to a trial by jury of an issue joined in such a motion, it being in the nature of an equitable remedy, and the statute (ch. 163, § 8, Code 1873) not applying to motions which partake of the nature of an equitable proceeding to enforce a charge on real estate. Pairo v. Bethell, 75 Va. 825.
B. PARTIES.
1. In General. --In a suit in chancery by a lien creditor to subject real estate, it is the duty of the plaintiff to make all lien creditors, known to him, and all who are disclosed by the judgment lien docket or the records of the courts of the counties in which the land to be sold is situated, parties to the suit, and so must a trustee and the cestui que trust be parties. Bank of Fairmont v. Watson, 39 W.Va. 342, 19 S.E. 413.
Assignors of Contractor Proper, if Not Necessary.--As the statute requires all parties in interest to be before the court, the assignors of the contract are proper, if not necessary, and may be made such on their motion. Pairo v. Bethell, 75 Va. 825.
Failure to Make Necessary Parties--Effect.--If a lien creditor, in filing a bill to enforce his lien against real estate, neglects to make necessary parties thereto in accordance with the former decision of this court, all decrees entered will be re versed, and the proceedings thereunder annulled, and the bill will be remanded to be properly amended. Farmers' Bank v. Watson, 39 W.Va. 342, 19 S.E. 413.
Vendor Reserving Lien Should Be Party.--If A agrees to convey land to B and puts him in possession thereof, under an agreement that he will build a house thereon, and that then A will convey it to him, reserving a lien on the property, and B contracts with a mechanic to build the house and it is built, and a mechanic's lien claimed on the property and recorded under ch. 139, Acts 1872, § 3, p. 460, and afterwards the deed is made to the purchaser reserving the vendor's lien for the unpaid purchase money, the vendor's lien will have priority over the mechanic's lien. And if B is a married woman, the mechanic, in seeking to enforce his lien on her separate estate, ought not to make the vendor a party defendant, for the land can be sold only by a separate suit by the vendor to subject the corpus of the property to his lien. Charleston Lumber, etc., Co. v. Brockmyer, 18 W.Va. 586.
C. THE BILL.
1. In General. --A bill to enforce a mechanic's lien does not require very great particularity, because the account filed with the clerk, claiming the lien, itself has great effect. W.Va. Bldg. Co. v. Saucer, 45 W.Va. 483, 31 S.E. 965.
2. Time to Be Filed.
Where Money Due by Instalments.--Under the Code, ch. 119, p. 510, a bill in equity is the proper proceeding to enforce a mechanic's lien, and the suit must be commenced within six months from the time the money or last instalment was due. Iaege v. Bossieux, 15 Gratt. 83.
And in a suit to enforce a mechanic's lien claimed under an act of March 8, 1879, if it appears upon the face of the bill that the suit was nobrought within six months from the time the plaintiff filed his account with the clerk, as required by statute, the bill should be dismissed upon demurrer. Phillips v. Roberts, 26 W.Va. 783.
3. Alleging Perfection of Lien. --A bill filed to enforce a mechanic's lien sufficiently alleges that the lien was perfected before the expiration of thirty days from the termination of the work, when it alleges that the lien was filed as provided for in the Code, § § 2475, 2476, and the copy of the record of the lien exhibited with the bill shows that a part of the work charged for was done within thirty days of the recordation of the lien. Richlands, etc., Co v. Hiltebeitel, 92 Va. 91, 22 S.E. 806.
4. Alleging Failure to Pay Estimate. --If contractors are compelled, by reason of their own insolvency, to abandon their contract, they cannot sue for the work and labor performed, unless they allege and prove that either the owner, as a dependent condition to the continuance of the work, failed to pay the estimate of the architects when properly made, or collusively induced such architects in bad faith not to make such payment thereof and defeating such precedent condition. McConnell v. Hewes, 50 W.Va. 33, 40 S.E. 436.
5. Unnecessary to Allege Approval of Contract by Contractor. --In a declaration against the owner under the mechanic's lien law, it is unnecessary to aver that the account, alleged to have been furnished the defendant, was approved by the general contractor, or that the latter, after ten days notice thereof, had failed to object to it; or that the same had been ascertained to be due from the latter to the subcontractor; nor is it necessary to aver when alleged notice was given the defendant; nor that, when notice was given, he owed anything to the general contractor. Code 1873, ch. 115. Acts 1874-5, ch. 351, p. 137. Norfolk, etc., R. Co. v. Howison, 81 Va. 125.
6. Unnecessary to Allege any Part Due. --In a suit of a subcontractor against an owner for materials furnished the general contractor, it is unnecessary to allege that any part of the price agreed to be paid remained due to the latter from the owner when notice was given. Acts 1874-5, § 5, p. 437. Roanoke Land, etc., Co. v. Karn, 80 Va. 589.
7. When Allegations Denied Must Be Proved. --When the party who claims to have furnished material for the construction of a house proceeds by a bill in equity to enforce his lien against the property, and the owner of the property, in answer to the bill, denies that the lien has been properly obtained by pursuing the statutory requirements, denies that the material was furnished by the plaintiff, the allegations of the bill must be sustained by proof, in order to obtain a decree for the sale of the property. Central City Brick Co. v. Norfolk & W. R. Co., 44 W.Va. 286, 28 S.E. 926.
D. NEW OR SUPPLEMENTAL BILL.
Where Not Required.--Where a mechanic asserts his lien as to instalments due and there are others to become due, it is not necessary to file a new or supplemental bill for such future instalments. Iaege v. Bossieux, 15 Gratt. 83.
E. CROSS BILL.
Proceeding When Filed.--Where the chancery court takes cognizance of a suit, the object whereof is to enforce an alleged mechanic's lien, and a cross bill is filed, and all the evidence appears in the record, this court will review the action of the court below and decree according to equity and the right of the case. Bailey Cons. Co. v. Purcell, 88 Va. 300, 13 S.E. 456.
F. DIRECTING AN ISSUE. --The court might, perhaps, in the exercise of a sound discretion, direct an issue or issues under circumstances which would warrant such direction in a regular chancery suit; and so, if the case required it, there seems to be no good reason why there might not be a reference to a commissioner to make inquiries and to take and state accounts. Pairo v. Bethell, 75 Va. 825.
G. DECREE OR JUDGMENT.
1. May Be Personal. --Although a bill is filed to enforce the lien of a subcontractor against real estate of the owner, yet, if the account is established and the owner admits funds in hand sufficient to pay it and his readiness to pay, it would be a vain and useless act to subject the property to the payment of the lien, and it is not error to give a personal decree against the owner and general contractor for the amount due. Taylor v. Netherwood, 91 Va. 88, 20 S.E. 888.
2. Decree for Sale Not Final. --A decree entered, on a bill taken for confessed, for the sale of property to satisfy a supposed mechanic's lien is not final, and an appeal therefrom is not bound by the limitation prescribed by the Code, ch. 178, § 3, p. 1136, which is applicable to final decrees. Hendricks v. Fields, 26 Gratt. 447.
H. WHEN JUDGMENT WILL NOT BE REVERSED. --Judgment will not be reversed for defect, imperfection or omission in the pleadings unless in the court below there was a demurrer. Code 1873, ch. 177, § 3. But a failure to state any cause of action at all is not cured by the statute. Roanoke Land, etc., Co. v. Karn, 80 Va. 589.
I. APPEAL.
What May Be Considered on.--Nothing not made part of the record by bill of exceptions, or by order of the court, can be regarded as such by the appellate court. The clerk can add nothing to the record, and his certificate that a deposition, or other paper copied by him, was the evidence whereon the judgment was founded, is no part of the record. Roanoke Land, etc., Co. v. Karn, 80 Va. 589.
Defect in Notice. --When Objected to.--Defects in notice, or in service of notice, by subcontractor to owner, under the mechanic's lien law, cannot be objected to for the first time in the appellate court; nor can refusal of the court below to award new trial be reviewed unless all the evidence is in some proper mode certified to the appellate court. S. V. R. Co. v. Miller, 80 Va. 821.
J. SALE.
1. When for Cash. --It is proper to decree sale for cash enough to pay the amount of lien, when that amount is but a small proportion of the value of the whole property. Lester v. Pedigo, 84 Va. 309, 4 S.E. 703.
2. When on Credit. --Real property of value should be sold on a reasonable credit, unless under peculiar circumstances, which should appear by the record. Pairo v. Bethell, 75 Va. 825.
3. Sale of Machinery and Other Property May Be Separate. --Where machinery of a permanent character, and which is a part of the realty, is subject to a mechanic's lien, and there is a deed of trust on the buildings and land, all of which is to be sold under one decree, the machinery and the remaining property may be sold in different parcels. Haskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S.E. 878.
XVI. EVIDENCE.
A. IN GENERAL. --The first and most important general rule, applicable almost universally, is that the plaintiff should make proof of every material allegation of his complaint or declaration, and the defendant of every new affirmative fact contained in his plea. Central City Brick Co. v. Norfolk & W. R. Co., 44 W.Va. 286, 28 S.E. 926.
And the mechanic's lien laws do not alter the rules governing the production and competency of testimony, unless specially provided for by statute. Central City Brick Co. v. Norfolk & W. R. Co., 44 W.Va. 286, 28 S.E. 926.
Sufficiency of the Account as Evidence.--It is not sufficient to file with the bill the account filed with the clerk of the county court for the purpose of creating such lien, but the fact that the material was furnished to the contractor, to be used in the construction of the house, in pursuance of a contract with such contractor, must be alleged and proved before such lien will be enforced against the property; and especially is this the case when the contract is denied in the answer. Central City Brick Co. v. Norfolk & W. R. Co., 44 W.Va. 286, 28 S.E. 926.
B. RECEIPT. --Receipts of payment, whether embodied in written instruments or not, are deemed to be of the imperfect sort, which, though prima facie evidence of what they declare, may be explained or contradicted orally. They are so, even when expressed to be in full of all demands. Cushwa v. Improvement, etc., Ass'n, 45 W.Va. 490, 32 S.E. 259.
[*]For monographic note on Mechanic's Lien, see end of case.
[*]Judge Coalter, absent.