McNamee v. Rauck et al.

by oral evidence, but that an ambiguity may be explained and the premises identified.

The appellees cite and rely upon the case of Lindley v. Cross, 31 Ind. 106, where by a misdescription lots "3 and 4" were described as lots "6 and 7." An effort was made to correct the misdescription, in the action to foreclose, by alleging a mistake and showing that no third persons had acquired rights that would be affected by a correction of the mistake. It was held that the lien of the mechanic or material man is created by statute, and that the statute must be complied with; and that the court had no power to reform it.

This case has never been overruled or even criticised, but the later cases in this court, as we shall have occasion to point out, manifest a disposition to depart from the strict rule therein indicated.

The view we take of the statute regulating notices of mechanics' liens (Elliott's Supp., section 1690) renders it unnecessary for us to undertake to harmonize the decisions upon this question.

The statute in force when the case of Lindley v. Cross, supra, was decided (2 G. H., p. 299, section 650) was silent upon the subject of the description of real estate. And in all the changes and additions to this section from 1838 to 1883, no provision was made prescribing the requisites of a description of real estate in such notices.

In the amendment made to this section by the act approved March 6th, 1883, it is provided that the notice shall give “" a substantial description of such lot or land on which the house, mill, manufactory,*** or other structure may stand or be connected with, or to which it may be removed. Any description of the lot or land in a notice of lien will be sufficient, if, from such description or any reference therein, the lot or land can be identified."

This provision was doubtless intended to simplify the method of establishing liens, and being remedial in its nature

McNamee v. Rauck et al.

should be construed largely and beneficially so as to advance the remedy. Marion Tp., etc., Co. v. Norris, 37 Ind. 424; Suth. Stat. Const., section 410.

The trend of the later decisions, as well as of legislation, is in the direction of a liberal enforcement of the law giving mechanics and material men a lien upon property made valuable by their labor and material. In De Witt v. Smith, 63 Mo. 263, it is said: "The courts at one time were inclined to hold that enactments for mechanics' liens were in derogation of the common law, and their provisions should therefore be construed strictly against those who sought to avail themselves of their benefits. But the better doctrine now is, that these statutes are highly remedial in their nature, and should receive a liberal construction to advance. the just and beneficent objects had in view in their passage."

We are then to examine the notice to determine whether, from the description or any reference therein, the land can be identified. That the land is correctly described by township and range is undisputed, but the other descriptions, according to the allegations of the complaint, are contradictory and can not both stand. Although contrary to the general rule that words of particular description will control more general terms when both can not stand together, we think that, taking into consideration the situation of the parties, as disclosed, it is much more reasonable to suppose that the mistake was in the designation of the section and other minor subdivisions of the congressional survey, which few are able to keep in mind, than in the name of the county in which the land was situate.

By rejecting then the false description, we have the lands described by township, range and county. This would not be a sufficient description, but the statute says that if from any reference" in the notice the land can be identified it will be sufficient. The notice refers to the land, upon which the lien was to be held, as that upon which the house was situate which was built by the appellant for the owner at

McNamee v. Rauck et al.

her request, for which building and the material furnished therefor, she owed him $1,000. Giving also the date when the work was performed.

We are not without authority as to the use to which the building erected by the mechanic or for which material was furnished may be put as an identification of the premises mentioned in the notice of lien. In City of Crawfordsville v. Johnson, 51 Ind. 397, the notice was held sufficient because the new building showed what part of the lot it covered for which the labor and material were furnished

In Newcomer v. Hutchings, 96 Ind. 119, the notice was for a building on lots numbered 9 and 10, the building was erected on lots 10 and 11; the location of the building was held to be a sufficient identification of the premises, notwithstanding the misdescription of one of the lots in the notice.

In White v. Stanton, supra, the notice was for materials of a dwelling house on several lots and eighty acres of land. The names of the State and county within which the land was situate were not given. The court held that inasmuch as the notice referred to the dwelling-house as having been erected on all the lots, it was sufficient.

It appears also from the complaint that no other property answers the description in the notice, which is said to aid what might otherwise be an insufficient description. Phil. Mech. Liens, section 382.

We are of the opinion that, as against the appellants, the notice, when taken in connection with the extrinsic facts averred in the complaint, was sufficient to create a lien.

The judgment creditors are not innocent purchasers, but hold their lien subject to all prior liens and equities. Armstrong v. Fearnaw, 67 Ind. 429; Foltz v. Wert, 103 Ind. 404.

We are also of the opinion that the appellant is not precluded by the judgment rendered against the appellee Rauck from again foreclosing his lien. Conyers v. Mericles, 75 Ind. 443; McCasland v. Etna Life Ins. Co., 108 Ind. 130.

Gilson et al. v. The Board of Commissioners of Rush County.

The judgment is reversed, with costs, and the court below instructed to overrule the demurrers to the complaint, and to proceed in accordance with this opinion.

Filed April 9, 1891.

No. 15,785.

GILSON ET AL. v. THE BOARD OF COMMISSIONERS OF RUSH COUNTY.

CONSTITUTIONAL LAW.- Uniformity of Statute.-Local or Special Legislation. -A statute which is of general and uniform operation throughout the State, and operates alike upon all persons, under the same circumstances, is not subject to the objection that it is special or local legislation.

SAME.-Uniformity in Taxing District.-If a tax law provides that the rate of assessment and taxation shall be uniform and equal throughout the locality in which the tax is to be levied, it does not violate the section of the Constitution requiring that a tax law shall provide for a uniform and equal rate of assessment and taxation.

FREE GRAVEL ROAD.-Act of 1889 for Purchase of Road is Valid.-The act of March 8, 1889 (Acts 1889, p. 276), providing for the purchase of toll roads is constitutional, and does not violate either section 22, article 4, or section 1, article 10, of the Constitution.

SAME.-Majority of Votes Cast Gives Authority to Purchase.-If the requisite number of freeholders, citizens of two or more townships, jointly petition the board of county commissioners for an election to determine if a certain designated toll road shall be purchased and made a free road, and an election is ordered and held pursuant to the request of such petition, such townships thus petitioning constitute an election district; and if a majority of all the votes cast in such district is in favor of such purchase, the purchase must be made, although a majority in one or more of the townships is against it.

SAME.-Exemption of Realty from Taxation.-Validity of Statute.-The provision in the statute exempting from taxation real estate previously assessed for free gravel roads, until other property has paid an amount equal to such assessments, does not render the statute void. SAME.-Objections to Proceedings. When to be Made.-Objections to the petition for an election, notice thereof, appraisement of the road, and reguVOL. 128.-5

Gilson et al. v. The Board of Commissioners of Rush County.

larity of the election must be made before the final order for the purchase of the road is entered by the board of county commissioners. STATUTE.-Object in Construing.-Isolated Words or Sentences.-The object to be attained in construing a statute is to ascertain the intention of the Legislature which passed it, which intention is to be ascertained by looking to the whole statute, and not in the consideration of isolated words, or sentences.

From the Rush Circuit Court.

J. H. Mellett and M. E. Forkner, for appellants.

J. Q. Thomas, K. M. Hord and E. K. Adams, for appellee.

COFFEY, J.-By an act of the General Assembly, approved March 8, 1889 (Acts of 1889, p. 276), it is provided that the county commissioners of any county in this State, when petitioned therefor by fifty freeholders, citizens of any township, or townships, in the county, where a toll-road is located, shall submit to the voters of said township, or townships, in such county through which said road may pass, at a regular or special election, giving at least twenty days' notice in a newspaper of general circulation published in said county, and by posting up written or printed notices thereof at each voting place in said township, or townships, the question of purchasing turnpikes, or toll-roads, in said township, or townships. The vote on such question is required to be certified by the proper officers of election to the county commissioners, and, if a majority of the votes at such election is in favor of the purchase, it is made the duty of such board to purchase such toll-road. Before such election is held it is the duty of the board of commissioners to appoint a surveyor, or engineer, of the county, and two disinterested freeholders of the county, one of such freeholders to be selected by the board, and the other by the company owning the road, to view the road to be purchased, and determine the consideration to be paid for the same. It is further required that the consideration to be paid shall be published as a part of the notice of election.

Upon the order for the purchase of such toll-road, or a