Raeford Lumber Co. v. Rockfish Trading Co.

79 S.E. 627, 163 N.C. 314, 1913 N.C. LEXIS 173

• Court: Supreme Court of North Carolina
• Decided: October 22, 1913
• Status: Published

Opinion

AlleN, J.,

after stating the case: The motion to nonsuit rests on two grounds:

1. That it is admitted that the defendant is a purchaser for value, and there is no evidence that it had notice of the lien.

2. That the acceptance" of a note for the amount due for material, and its renewal, is a waiver of the right to a lien.

The correct settlement of these questions requires a consideration of section 2028 of the Revisal, which, as amended by chapter 32, Public Laws 1909, reads as follows: “Notice of lien shall be filed, as hereinbefore provided, at any time within twelve months after the completion of the labor, or the final furnishing the materials, or the gathering of the -crops: Provided, that as to the rights of a purchaser for value and without notice, the notice of lien must be filed within six months.”

The statute evidently means that if the material ma.n; 'wishes to protect himself against a purchaser for value without notice, he' must file his notice of lien within, six months, and that as against .purchasers for value with notice, he may do so within twelve months.

It also marks the distinction between “notice to the purchaser” and “notice of lien,” using the language, “as to the rights of a purchaser for value without notice, the notice of lien must be filed within six months.”

“The Legislature is presumed to know the existing law and to legislate with reference to it” (S. v. Railway, 145 N. C., 542), and we must, therefore, assume that at the time of the enactment of the statute it had in mind the particularity required in filing notice of lien, as illustrated in several cases in our reports (Wray v. Harris, 77 N. C., 77; Cook v. Cobb, 101 N. C., 68; Jefferson v. Bryant, 161 N. C., 405), and the principle well established as to purchasers, that “where one has notice of an opposing claim, he is put ‘upon inquiry’ and is presumed to have notice of every fact which a proper inquiry would have enabled him. to find out.” Blackwood v. Jones, 57 N. C., 57; Ijames v. Gaither, 93 N. C., 362; Whitted v. Puquay, 127 N. C., 72.

If this is a correct position, and the term used, “purchaser for value without notice,” is construed in accordance with its accepted meaning, there is not only evidence of notice to the defendant, but it is substantially beyond dispute, as one of the officers of the plaintiff testified that he told an officer of the defendant' that Campbell had not paid the plaintiff for the material used in building his house at Rockfish, and the officer of the defendant admitted that before the purchase the officer' of the plaintiff said something to him about Campbell owing the Raeford Lumber Company for material used in the house.

The second reason assigned by the defendant in support'of his motion for judgment of nonsuit — that the acceptance of a note, and its extension, for the amount due for materials, constitute a waiver of the right to a lien — might avail the defendant if it did not appear that the note became due and was unpaid by Campbell before the time for filing the lien expired.

In 27 Cyc., p. 265, in the article on mechanics’ liens, the author says: “An extension of the time of payment is not a waiver of the lien, although the lien is lost if the time for payment is extended by agreement ■ beyond the time allowed for enforcing the lien,” and the text is sustained by the decided cases. Montandon v. Deas, 14 Ala.,. 33; Chisholm v. Williams, 128 Ill., 115; Woolf v. Schaefer, 103 N. Y., App. Div., 567; Hoagland v. Lusk, 35 Neb., 376; Gushwa v. Improvement Co., 45 W. Va., 490; Wisconsin Trust Co. v. Robinson, 68 Fed., 778; Goble v. Gale, 41 Am. Dec., 219.

There is a very full note to the last case, in which many authorities are collected to sustain the position that “the acceptance of the debtor’s promissory note is not alone sufficient to effect a waiver of the lien, in the absence of any express agreement that it shall so operate.”

We are, therefore, of opinion that there is no error in denying the motion to nonsuit.

The exception to the charge on the burden of proof on the second issue is immaterial, as there is no real controversy as to notice; but if there had been a conflict in the evidence, the burden of the issue is on the defendant.

• The defendant does not rely for its protection upon an exception in the enacting clause of the statute, but upon the proviso, which withdraws from its operation, after six months, purchasers for value without notice, and it devolves upon the defendant to bring itself within the proviso.

In Black on Interpretation of Statutes, p. 275, tbe author says: “Where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall -fairly within its terms. In short, a proviso carves special exceptions only out of the enacting clause; and those who set up any such exception must establish it as being within the words as well as within the reason thereof.”

The question is fully discussed and the authorities collected in S. v. Goulden, 134 N. C., 746.

We are, therefore, of opinion there is no error.

No error.