Kinney v. Duluth Ore Co.

60 N.W. 23, 58 Minn. 455, 1894 Minn. LEXIS 433

• Court: Supreme Court of Minnesota
• Decided: August 16, 1894
• Docket: No. 8754
• Status: Published

Opinion

Collins, J.

The questions here presented for determination are— First, does the proper transfer of a claim or demand, the payment of which may be enforced under the provisions of the mechanic’s lien law (Laws 18S9, ch. 200), operate as an assignment of the right to a lien, including the right of the transferee to file the lien statement in his own name? and, Second, if the first question be answered in the affirmative, can such transferee or assignee include more than one claim or demand in the same lien statement?

1. There is nothing in our statute, as there is in the statutes of some states, which forbids, directly or by implication, the assignment of such claims and demands; and it was held more than twenty five years ago, in Tuttle v. Howe, 14 Minn. 145 (Gil. 113), that a lien claim was capable of assignment, although in that case the required affidavit for a lien had been filed by the original creditor prior to the assignment. In that opinion, attention was called to 1866, G. S. ch. 90, § 14, the then existing lien law, which gave to executors and administrators, as does Laws 1889, ch. 200, § 17, the same rights as their testator or intestate would be entitled to, if living, and the well-settled general rule that whatever rights of action or of property survive to an executor or administrator are assignable was referred to and relied upon. No one would dispute the right of an executor or an administrator to file the lien statement required by the present statute, and if such be the case it logically follows that the assignee of the lien may make and file the lien statement. There is no good reason why the right to the lien should not be assignable before as well as after the statement has been filed, and there is an abundance of reasons why, if the right be assigned, the assignee should thereafter talce all necessary steps required to preserve and collect his claim. He must not be put at the mercy of his assignor, who might or might not choose to make or file the statement.

It is elementary that the assignment of a debt carnes with it all the liens, securities, and remedies which the assignor held or might have employed to enforce its payment, in the absence of a statute to the contrary. There has been some quibbling in the courts to avoid the application of this rule where the transfer has been of a claim or demand to which the right of lien attached. We are not inclined to follow the cases in which application of the rule has been denied. A summary of the decisions of the various states on the subject of the assignability of this class of debts and the result of such assignments may be found in Phillips, Mech. Liens (Bd Ed.) §§ 54-56.

2. We are clearly of the opinion that the lien statement may cover and include more than one claim or demand, providing the requirements of the statute are complied with as to each. Expense and trouble is thus saved, the procedure is directly in line with that provision of the statute which compels the bringing of all lien claimants into one action, and the object of the law is fully accomplished. Although the facts are not the same, the case, on this point, is governed by Benjamin v. Wilson, 34 Minn. 517, (26 N. W. 725.)

Order reversed.

Buck, J., absent, sick, took no part.

(Opinion published 60 N. W. 23.)

Application for reargument denied October 9, 1894.