Grant v. Cumberland Valley Cement Co.

52 S.E. 36, 58 W. Va. 162, 1905 W. Va. LEXIS 94

• Court: West Virginia Supreme Court
• Decided: October 31, 1905
• Status: Published

Opinion

PoEEENBARGER, JUDGE:

Complaining of a decree of the circuit court of Mineral county, in a suit brought by James Grant to enforce a mechanic’s lien against the property of the Cumberland Yalley Cement Company, a corporation, given by section 7 of chapter 75 of the Code of 1899, said corporation has appealed, assigning, as grounds of error, the overruling of its demurrer to the bill, premature entry of an order of reference, and provision for the sale of its property for the satisfaction of prior liens thereon as well as the mechanic’s lien, so as to pass the estate in fee simple therein instead of the sale of its mere equity of redemption in its real estate,

Upon the demurrer, it is insisted (1) that the account filed in the clerk’s office of the county court for the preservation of the lien lacks some of the requisites of “a just and true account of the amount due,” after allowing all credits; (2) that said account does not show the services, for which the lien is claimed, to have been rendered within nine months before the lien was recorded; (3) that prior lienors were made parties to the bill.

The account, with the affidavit, verifying it, an attested copy of which is exhibited with, and made part of, the bill, reads as follows:

“The Cumberland Valley Cement Company

To James Grant, Dr.

1903.

May 17tli To Salary as Superintendent under contract with said Company from May 17th, 1899, to May 17th, 1903, four years at $1200 per year to he paid monthly $100 permonth. $ 4800.00

Or.

By aggregate of all payments made to said James Grant on account of Salary up to this date.$ 4000.00

Balance due James Grant $800.00’’

“State of Maryland, County of Allegheny, to-wit: James Grant, being first duly sworn, deposes and says, that the foregoing is a just and true account of the amount due him (said James Grant) after allowing all credits from the Cumberland Yalley Cement Company, a corporation duly incorporated and organized under the laws of the State of West Virginia, and having its plant, works, real estate and personal property at Cedar Cliff, in Mineral county, West Virginia, for work and labor expended and performed for said Company by him as Superintendent, under a contract made on the 17th day of May, 1899. And said affiant further says, that the real estate of said corporation is a tract of 140 acres of land, more or less situate, lying and being at and neat Cedar Cliff, on the North Branch of the Potomac River and Knobley Mountain, in said county of Mineral, adjoining lands of Carrie Brady and others, which was conveyed to said Cumberland Valley Cement Company by S. Dana Lincoln and wife, by deed dated 13th of June, 1899, recorded in the office of the Clerk of the County Court of Mineral County, West Virginia, in Deed Book Number 20 pages 606 & 607, and on which tract are situated the works of said Company, at which the said James Grant performed the work and labor aforesaid. And this account is filed for the purpose of securing to said James Grant the benefit of the lien therefor on all the real estate and personal property of said Company which is provided for by the statutes of the state of West Virginia, and the work and labor for the value of which this lien is claimed was not performed more than nine months before the filing of this account. James Grant.”

The account and sworn statement annexed to it are to be read together upon the inquiry as to whether the statutory requirements have been complied with. U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698. The account proper sets forth correctly the name of the defendant, without describing it as a corporation, but the sworn statement supplies this defect, if defect it be, by the positive affirmation that it is a corporation. Though it is nowhere stated in so many words that the services for which the lien is claimed were rendered within nine months next preceding the liling of the account, it is declared, in the language of the statute, that “the work and labor for the value of which this lien is claimed was not performed more than nine months before the filing of this account,” and the account claims the salary to May 17, 1903, the day before the filing thereof. It also shows the amount of the earned salary, $4,800.00, to have been paid to the extent of $4,000.00, leaving a balance due of $800.00, a sum less than the salary for nine months. As the services continued until the filing of the account, and the balance due is less than nine months’ salary, and the services unpaid for were not performed more than nine months before the filing of the account, the claim must be for services rendered within nine months. In both the accouut and the statement, the claim is described as one for service rendered under a contract with the owner of the property against which it is asserted. Is the account sufficient^ itemized? It does not show each month’s salary charged as a separate item and each payment as a separate item of credit, in conformity with the view of connsel for the appellant, as to the requirement of the statute. But his objection seems to go to the form of the account rather than to matter of substance. Itemization is required so that the debtor and other creditors may determine, from an inspection of the recorded account, for what the lien is claimed; whether for work and labor, and, if so, the nature of it, when performed and at what price; or materials, and, if so, the kind, quality and price and when furnished; or both labor and materials, and, if so, the kind, quality and price of each and when performed and furnished. The account and sworn statement accompanying it in this case, read together, plainly show the requisite facts, notwithstanding the lack of formality and clerical taste.

A case relied upon as an authority against the form of statement adopted is Rude v. Mitchell, 97 Mo. 365, cited in Phil. Mech. Liens section 350, holding as follows: “A lumping item of the whole contract price on the one hand and the credits on the other is no compliance with the law.” But this language must be referred to its subject matter, the account filed in that case, for illustration. It is too general to permit application to all accounts. They differ in nature, according to the subject matter. The one considered in the case cited was under a contract to make additions to a building, thus involving both labor and materials of several different kinds, and the account was lumped into three large items, without any indication whatever as to how much was for labor and how much for materials. Here, it appears on the face of the account that the basis of it is labor and the kind, amount and price are all plainly disclosed. What reason is there for requiring further specification?

To require more would impose upon the contractor duties which are outside of the purpose underlying the statute, which is that the owner may be able to ascertain the correctness and reasonableness of the demand asserted against his property and that purchasers and encumbrancers may have information concerning the nature and amount of the lien. Phil. Mech. Liens section 349. “The intention was that the mere inspection of a record to be found at a particular place should disclose all the information necessary in order to enable those interested therein to determine as to the existence of liens on the property.” Loan Co. v. Furbush, 80 Fed. Rep. 631. Such being the purpose, it obviously follows that a substantial, though not technical, compliance with the statute is sufficient, and this Court has so decided in U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698. “All that is required is that enough should ax^pear on the face of the statement to point the way to successful inquiry.” Phil. Mech. Liens section 350, p. 617, citing Knabb's Appeal, 10 Pa. St. 186; McLaughlin v. Shaughnessey, 42 Miss. 520; Wilvert v. Sunbury, 81 Pa. 27.

An attested copy of the account and sworn statement is exhibited with the bill and made part thereof. This supplies the want of certain specific allegations which should otherwise have appeared in the b'ill, but were not inserted. Reading the bill and exhibit together, as the court may do-, (Sadler v. Taylor, 49 W. Va. 104, Johnson v. Anderson, 76 Va. 76, Thompson v. Clark, 81 Va. 422,) all the necessary allegations appear, as above indicated in the analysis of the account and statement. Mr. Hogg, in his Equity Procedure, at section 124, gives the following clear and concise statement of the requisites of such a bill as this: “The bill to enforce a mechanic’s lien must show on its face that the claimant has taken the steps necessary to the creation of such a lien, that the work was done or material furnished in pursuance of a contract with the owner of the property or his authorized agent, to be used in constructing, altering, repairing or removing the house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure against which the lien is claimed; the filing of the account with the proper officer within the time required by law after the claimant has ceased to work or furnish material, together with a description of the property against which the lien is claimed; anti there should be an averment of the name of the owner of the property, against which the lien is claimed, at the time the work was performed or the materials furnished, and it should appear that the suit was brought within the time required by law. The bill must also show the existence of the debt at the time suit is brought, for the payment of which the lien is sought to be enforced.”

The objections based upon the bringing in of prior and subsequent lienors as defendants and upon the direction of the decree to sell the property for the satisfaction and discharge of all the liens reported by the commissioner, maybe disposed of together; for they are founded upon one and the same conception and view of the nature of the suit. Section 3 of chapter of the Code, concerning mechanics’ liens, provides that persons who are entitled to assert such a lien shall have liens upon the house or other structure for which labor or materials are furnished “and upon the interest of the owner in the lot or lands on which the same may stand, orto which it may bo removed.” As there was a prior mortgage and also prior deed of trust on the real estate of the defendant,- in consequence of which it had only an equity of redemption in the property, it is insisted that the mechanic’s lien extends to, and covers, only such interest; and hence, that only such persons as are interested in the equity of redemption, namely, the owner and subsequent encum-brancers, should be made parties, and that only the equity of redemption should be sold. This view is supplemented by reference to section 10 of said chapter, by which the mechanic’s lienor is required to make all other persons having liens on the property under said chapter parties, the assumption being that only those persons who are designated by the statute as parties should be made defendants. Both of these propositions are untenable. The interest of the owner referred to by the statute is not merely an equity of redemption, but is the estate in the land, which may be an estate in fee simple, a life estate or a term for years, or a mere equitable title, such as enables him, upon compliance with certain requirements, to call in the legal title. The defendant has such title, though encumbered by liens. The legal title is outstanding-in the mortgagee, but, upon payment of the mortgage, and trust deed debts, the owner would be entitled to call it back and have it revested in him. His equity of redemption is the right to pay the debts and re-acquire the legal title and vest in himself a complete legal fee simple title. It is upon this right that the plaintiff acquired a lien and not upon the value of the property less the liens. Suppose some prior liens had been discharged after the mechanic’s lien had attached, can it reasonably be said that the interest thus relieved would not be covered by the mechanic’s lien, and if all the prior liens had been thus discharged, this mechanic’s lien would not be the first lien? If this were not true, the lien clearly would not cover the interest of the owner.

In some, jurisdictions the courts hold that prior lienors are not necessary or proper parties. Tompkins v. Horton, 25 N. J. Eq. 284; Smith v. Shaffer, 46 Md. 573; Portones v. Badenock, 132 Ill. 377. Who are necessary parties is determined in the various states by the statutes providing for the enforcement of the lien. In New Jersey, the action is at law and the judgment enforced by execution. In Marjdand, the statute authorizes enforcement by bill in equity and says that, in such case, the same proceeding shall be had as are used by the courts of equity to enforce other liens, but the courts hold it improper to m'ake a prior lienor a party unless he comes in and consents to be made a party. The Illinois court held that it was not error to decree a sale subject to a prior deed of trust without making the cestxvi que trust a party. Of the failure to make him a party the debtor only complained. In that case, however, the trustee was a party, The Illinois practice seems to be very similar to our own. Our statute provides at section 12 of chapter 75, that if the lien be established in favor of any of the creditors, whose claims are presented in the suit, the court shall order a sale of the property on which the lien is established or so much thereof as may be sufficient to satisfy such claims in like manner as in other suits in chancery. Hogg’s Equity Procedure, at section 70, after referring to the statute, says: ‘!A suit to enforce a mechanic’s lien is carried on with all the rights, principles and methods of procedure incident to a court of equity; so that the question of parties is usually determined by these principles and methods.” This Court seems never to have passed directly upon the question of proper parties in such a suit. Hence, it becomes necessary to resort to the general principles governing chancery practice in other cases for a solution of it. In all creditors’ suits against decedents’ estates and suits for the enforcement of judgment liens, it is necessary that all lienors be brought before the court. For this we need look no further than the statute.' Code, chapters 86 and 139. Upon bills to enforce mortgages, judgment creditors and other lienors, must be made parties. Hogg’sEq. Pro. section 72. But there are some cases in which it is not necessary, such as bills to set aside fraudulent conveyances and bills to enforce vendors’ liens. McClaugherty v. Croft, 43 W. Va. 270; Neeley v. Ruleys, 26 W. Va. 686; but, in such cases, and, indeed, all cases, it seems necessary that the legal title be before the court. Turk v. Skiles, 38 W. Va. 404, Bensimer v. Fell, 35 W. Va. 17; Smith v. Parsons, 36 W. Va. 653; Bilmyer v. Sherman, 23 W. Va. 657; Norris v. Bean, 17 W. Va. 655; Baker v. Oil Tract Co., 7 V. Va. 454. This seems to accord with the Illinois practice, as indicated by the case above cited in which the trustee only was made a party. Very well considered cases, decided by the supreme court of Minnesota, are of the same import. Finlayson v. Crooks, 47 Minn. 74; Bassett v. Menage, 52 Minn. 121. The former case holds that a mortgagor or any other party claiming an interest in the premises may be made a party, and his rights adjudicated whenever it might be done in an action to foreclose a mortgage. The statute in that state, however, says the lien may be enforced in the same manner as in actions for the foreclosure of mortgages upon real estate, except as otherwise therein provided. There, as here, most of the provisions of the statute, refer to mechanic’s lien claims, but the court says that is because such lien is the subject of which the statute specially treats, and the mention of such liens and claims does not forbid the making of other interested persons parties to the suit. In this case, there was a prior mortgage and a prior deed of trust, in consequence of which the legal title was not in the defendant and it was necessary to make the mortgagee and trustee parties. By his bill, the plaintiff subordinated his lien to the mortgage and the deed of trust, several judgment liens and a prior mechanic’s lien and claimed no priority over any of them. None of these lienors made any defense to the bill and are not complaining of the decree. Whether, if said prior lienors had appeared and demurred to the bill, the court would have sustained their demurrer, holding them not to be necessary parties, there is no occasion to say. By not doing so, they have waived the error, if any there was. The defendant is not in a position to complain, for the reason that the error, if any, is not prejudicial to it. Moreover, there seems to bé a precedent for making all lienors and interested persons ■ parties to a suit of this kind in the case of U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698. There, a judgment lienor was made a party defendant but the bill was held good on demurrer. Though, in bills to set aside fraudulent conveyances, it is not necessary to make all creditors parties, it is the general practice to do so and our reports are full of cases in which it has been done. As no complaint is made by the creditors on that ground and the debtor and its grantor are not in a condition to complain, because not prejudiced by any irregularity in that respect, since all the creditors are entitled to have satisfaction out of the property, if sufficient, upon the establishment of the fraud alleged, the decree is allowed to stand. When the mechanic’s lien is established, so as to give jurisdiction, no reason is perceived why all creditors may not, if they choose to do so, come in and have their liens enforced in the same cause. The power of a court of equity, having jurisdiction of a cause, to 'hear all persons interested in the subject matter thereof, is very broad. Every lienor could maintain a separate and contemporaneous suit for the enforcement of his lien, unless required in some way to present his claim in some other suit, and the court could hear them all together and make one decree of sale to satisfy all, and this would be necessary in order to avoid confusion. There is no lack of jurisdiction here. The lien gives that, and, it having been conferred, the court may take cognizance of such incidental matters, germane to the subject matter, as may be necessary to give definiteness and certainty to its decree, and full relief to the plaintiff. Is it a hardship upon the defendant to precipitate upon him the liens of all his creditors? If he is able to pay the lien for which the suit is brought, he may, by doing so, stop the proceedings. If he cannot do so, the property must go to sale anyhow to satisfy it and his interest in it is extinguished by the sale. He is not, therefore, prejudiced or injured by making them parties. However this objection on the part of the defendant might have been viewed by the court below, it cannot avail him here to reverse the decree, all the alleged improper parties having acquiesced in it and thereby signified their willingness to take the benefit of it; for the rule is well settled that judgments and decrees, though erroneous will not be reversed at the instance of persons who are not prejudiced by the error. Nor did the court err in decreeing a sale of the land to pay the liens thereon instead of the equity of redemption; for the statute provides that the court shall order a sale of the property as in other suits in chancery and it is the universal practice to order a sale of the land for the purpose of satisfying all the liens that are adjudicated and ascertained in the suit.

The order of reference was not premature, for, at the time it was made, the bill and its exhibits showed a number of liens. The requirement that a prima, facie case be made before the allowance of an order of reference was fully met,. The answer substantially admitted indebtedness on account of services as superintendent, but denied that it existed “in manner and form” as alleged in the bill, and averred that .a true account would show that “said work, or the. greater part thereof, was performed before the time mentioned in said claim of lien.” It did not deny the other liens set forth in the bill. It is argumentative and evasive, not making a full and square denial of the plaintiff’s claim. It admits indebtedness, but denies the correctness of the amount claimed, and contests the lion claimed on the ground of defects in the recorded notice. In such a state of the pleadings, an order of reference could properly be entered without proof to sustain the allegations of the bill. All allegations not denied are taken as true. Code, chapter 125, section 36; Gardner v. Landcraft, 6 W. Va. 36; Dickinson v. Railway Co., 7 W. Va. 390; Warren v. Syme, 7 W. V. 474; Burlew v. Quarrier, 16 W. Va. 108.

For the foregoing reasons, the decree complained of will be affirmed.

Affirmed.