ASSIGNMENT OF NOTE FOR PURCHASE-MONEY for land, whether carries with it vendor's lien: Perry v. Roberts, 95 Am. Dec. 689, and note 690

DEED IS NOT ENTITLED TO BE RECORDED, unless executed and acknowledged according to law; unless this is done, it is not constructive notice: Ely v. Wilcox, 91 Am. Dec. 436, and note 441.

CORRECTION OF MISTAKE IN ACKNOWLEDGMENT OF DEEDS: Jordan v. Corey, 52 Am. Dec. 517, and extended note 519, citing the principal case.

CHAMPERTY, LAW OF: Thallhimer v. Brinckerhoff, 15 Am. Dec. 308, and note 317.

GALBREATH, STEWART, & Co. v. DAVIDSON.

[25 ARKANSAS, 490.]

MECHANIC'S LIEN CANNOT BE ENFORCED when the contract under which it arises is made with another than the ostensible owner of the property at the time, and without his consent or authority.

IT IS ERROR TO INSTRUCT THAT FINDING ONE ISSUE in favor of plaintiff will entitle him to recover, when, in order to gain the suit, all of the issues must be found in his favor.

WHARF-BOAT IS LIABLE FOR MECHANIO'S LIEN, as it is attached to the soil, and savors of the realty.

THE opinion states the facts.

Watkins and Rose, for the plaintiffs in error.

Pindalls and English, and Gantt and English, for the defendant in error.

By Court, GREGG, J. On the third day of June, 1868, Davidson filed, in the office of the clerk of the circuit court of Desha County, his account for $1,048.78, and claimed a mechanic's lien for that sum for materials, work, and labor, in repairing a wharf-boat, under a contract with Loftin H. Nunn. On the 25th of September he sued out a scire facias to enforce such lien, which was served on Nuun, and returned to the October term, 1868, of the court, at which time Galbreath, Stewart, & Co. appeared, claimed the boat, were made defendants, and filed three pleas.

The pleas were in substance,

1. That Galbreath, Stewart, & Co. were the owners of the boat, but that at the date of the repairs, etc., A. S. Dowd was owner; that the contract was made, repairs done, etc., without any authority from Dowd.

2. That when said work was had and done, Galbreath, Stewart, & Co. were the true and ostensible owners of the boat, and that they are still such owners, and that such labor, etc.,

was had and done, and the contract therefor made, without any authority from them.

3. That Nunn did not undertake and promise as alleged, etc. Davidson took issue upon the first and third pleas, and demurred to the second. The court sustained the demurrer; Galbreath, Stewart, & Co. rested; a jury was called, and trial had upon the issues to the first and third pleas; verdict and judgment had in favor of Davidson for the amount of his claim. Galbreath, Stewart, & Co. excepted to the giving of the first, second, and third instructions for Davidson, and the refusing to give the first, second, third, and sixth instructions asked by them. They moved for a new trial; their motion was overruled; they excepted thereto, and took their bill of exceptions, setting out all the evidence, and brought error.

The first error complained of was the sustaining the demurrer to their second plea. We see no valid objection to that plea; if Galbreath, Stewart, & Co. were the owners of the boat, really and ostensibly, as averred, thus openly exhibiting their title, and gave no authority for such repairs, they are not liable therefor; and one who would attempt to make gain by meddling with their property, thus openly or "ostensibly" held, without their direct or indirect consent, would of course lose any labor or material he might so expend. But the evidence now before the court shows most clearly that such were not the facts; that if Galbreath, Stewart, & Co. were the owners, they were secretly so. In no sense were they ostensible owners. They made no record or other public evidence of their title; they exercised no control over the boat; made no claim to it, or the rents and profits from it; and Nunn, who had entire charge of the boat, had no knowledge of any such ownership or claim. Yet they had a right to aver such facts, and if they can sufficiently prove their title and non-consent, the defense will be a good one.

In giving the instructions for Davidson, the court seemed to misapprehend the law arising upon the issues to the separate pleas of Galbreath, Stewart, & Co., and instructed the jury on each issue, that if they found that issue in favor of Davidson, they must assess his damages, etc., to the effect, that if either issue was found for the plaintiff, he must recover, when evidently the judgment would have been for the defendants therein, if any one of the issues had been found for them. One good plea, sufficiently proved, will defeat an action. These instructions were substantially good, but for this error.

The third and last ground assigned as error is the refusal of the court to give the first, second, third, and sixth instructions of Galbreath, Stewart, & Co., which instructions in effect required the court to declare a wharf-boat personal property, and not subject to a mechanic's statutory lien. The statute declares that all artisans, builders, and mechanics who shall perform work, etc., on any building, edifice, or tenement for the owner or proprietor, etc., shall have an absolute lien on such building, edifice, or tenement for such work and labor, as well as for all materials furnished, etc., and for all sums of money paid on account of materials furnished and used about such work, etc.: See Gould's Dig. 768.

While it is true that this is a statutory proceeding, and cannot be construed to apply remedies beyond the declared intent and meaning of the legislature, a large majority of the state courts have holden that such are meritorious remedial laws, and should have a liberal interpretation. They should be so construed as not to defeat the spirit, true intent, and meaning of the acts, and that such laws have been wisely enacted to encourage valuable and permanent improvements, and to secure the industrious mechanic his reasonable reward: See Patrick v. Valentine, 22 Mo. 148; Barnes v. Thompson, 2 Swan, 315; Tuttle v. Montford, 7 Cal. 360; S. C., 2 Cal. 60; Buck v. Brian, 2 How. (Miss.) 88; Houck on Liens, 38, and cases there cited.

Such laws were not intended to create liens upon mere personal chattels, but upon lands or things in some manner attached to the realty; not to embarrass commerce, or hinder the ready exchange of purely personal property, but to secure the erection of valuable structures, and protect the interests of him who may furnish materials and build the same.

The application of the law in this case is not entirely free from difficulty. Is a wharf-boat a mere personal chattel, or does it savor of the realty? Is it so attached to the soil as to support such lien? We are of the opinion that it is.

When the term "boat" is used, we are likely to catch the idea of locomotion, of passing, or transportation from one point to another, without hesitating to inquire whether that term is ever applied to other structures, which have no power of locomotion, no propelling force, by which they can move or be moved from point to point. It may be said the fastenings are easily cut, and a wharf-boat can be readily towed or floated away. So may a house be placed on rollers, and speedily

hauled upon other lands, but no one doubts a house being a fixture, simply because it is capable of being removed.

The riparian owner has a just claim to all the soil composing the bank of a stream, and no one can hold or use such soil upon the margin of a river, whether navigable or not, for the purpose of fastening or making safe any structure or building against the will of such owner; and should any one attempt to so lodge such building upon the private soil of another, forcibly and against his consent, we suppose no attorney would deny but such a one might be ejected therefrom.

The location and maintaining of a wharf-boat must depend upon its attachments to the soil. Such boat or building has no power to retain its position, except its bank fastenings. It cannot be severed from the soil without destroying the structure, at least its present local utility. Cut such structure loose from its moorings, from its connections, and it is as — effectually ruined for all practical purposes as is a house rolled away from its business location. To this extent it appertains to the realty. It rests against the bank. It supports upon the realty, and, unlike vessels that "plow the waters," it has no mobility-no apparatus to change place, or power to retain position — other than land fastenings. It is in fact but a floating business house, or rather a business house upon the surface of the water, and stationed by its cables. It is a building, a structure commonly used to facilitate the landing of boats, and the storing of freight, and it may have sleeping-apartments, may be dwelt in, and it is embraced within the spirit and meaning of our statute declaring that such liens may be held on "any building, edifice, or tenement": Gould's Dig., sec. 1, p. 768. Hence, we are of opinion that the court below did not err in refusing to give the first, second, third, and sixth instructions asked by Galbreath, Stewart, & Co.

-

But, for the errors aforesaid, the judgment must be reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.

BOATS, DOCKS, AND WHARVES, MECHANIC'S LIEN may exist against, if they are attached to the soil, and savor of the realty: Note to La Crosse etc. R. R. Co. v. Vanderpool, 78 Am. Dec. 695.

THE PRINCIPAL CASE IS CITED in Cotton v. Penzel, 44 Ark. 485, to the point that the materials furnished must become in some way a part of the land in the form of a building, or other erection, before a mechanic's lien can be asserted, and it is also necessary that the person for whom the erection is made should have some estate in the land.

CHAPTER 1 OF ACT OF 1850, CONCERNING CORPORATIONS, WAS NOT REPEALED by the act of 1851, although by a typographical error in the statutes of 1851, page 443, section 31, as printed, the whole of that act appears to have been repealed. The act, as enrolled, shows that only chapter 3 of the act of 1850 was repealed.

AUTHORITY TO HEAR AND DETERMINE ACTIONS AND PROCEEDINGS AT CHAMBERS may be conferred upon judges by the legislature.

APPEAL MAY BE TAKEN FROM JUDGMENT RENDERED BY JUDGE AT CHAM

BERS in a special proceeding to try the validity of a corporate election. WHERE ATTORNEYS STIPULATE WHAT ARE FACTS IN CASE, agreeing that the stipulation shall form part of the judgment roll, and that no other statement on appeal shall be necessary, the facts therein recited stand in the place of a finding of the facts by the court, no statement on appeal is necessary, and no specification of the errors relied upon need be made in the record.

WHERE EXERCISE OF CORPORATE POWER HAS BEEN REGULATED BY STATUTE, the corporation cannot, by its by-laws, resolutions, or contracts, change the mode of the exercise of that power.

WHERE STATUTE EXPRESSLY DECLARES WHO SHALL BE ENTITLED TO VOTE FOR DIRECTORS of a corporation, the corporation has no authority to extend or limit the right as regulated by the statute.

WHERE STATUTE GIVES STOCKHOLDERS OF RAILROAD CORPORATION POWER TO ELECT ITS DIRECTORS, the corporation cannot deprive the stockholders of this power.

WHERE CORPORATION INDEBTED TO ONE PERSON ISSUES TO ANOTHER AS TRUSTEE, as security for the debt, shares of its capital stock to be retransferred to the corporation upon payment of the indebtedness, the transaction constitutes a pledge of the stock. The general property in the stock in such a case is in the pledgor, the corporation.

WHERE CERTIFICATE BOOK OF CORPORATION SHOWS THAT STOCK IS HELD BY PERSON AS TRUSTEE, the officers of the corporation are charged with