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the owner thereof or his authorized agent be- , 8. STATUTES – MANDATORY STATUTES – Confore a claim for a lien for the improvement can STRUCTION. bo maintained.1

The mere fact that a statute is mandatory [Ed. Note.-For cases in point, see Cent. Dig. in form does not necessarily make it so in its vol. 34, Mechanics' Liens, § 77.)


[Ed. Note.-For cases in point, see Cent. Dig. Rev. St. 1898, 8 1386, prescribing the neces

vol. 44, Statutes, 88 308, 309.] sary acts to be done by a claimant to acquire 9. MECHANICS' LIENS-STATEMENT OF LIENa lien, and section 1387. providing that liens SUFFICIENCY. against two or more buildings may be included An owner employed a contractor to build in one claim, but the claim must designate the two houses on one parcel of land. The conamount claimed to be due on each building, struction of the buildings was treated as an must be construed in connection with each other, entirety. Held, that a statement of a lien set and the two must be construed in connection ting forth the amount due, without stating the with the chapter entitled “Mechanics' Liens," amount due on each building separately, was for, to arrive at the legislative intent, the court sufficient; for the two buildings were not sepcannot segregate a section or a part of a chapter arate buildings, within Rev. St. 1898, § 1387, on a subject, but the object of the law as a providing that liens against two or more buildwhole must be considered.

ings may be included in one claim, provided 4. Same,

the claim designates the amount due on each Rev. St. 1898, tit. 39, c. 1, creating me

building. chanics' liens, prescribing the methods to se

10. STATUTES-CONSTRUCTION. cure them, and providing a procedure to en

Where a statute requires certain things force them as against the property, the owner to be done to acquire a right, there must be a and among other claimants, must be construed substantial compliance with the statute; but, on the theory that some of the provisions are where a statute requires things to be done in intended for the owner, and others intended for case certain conditions exist, the statute is nou the claimants.

operative, unless the conditions are present. 5. SAME-NATURE OF LIEN-STATUTES.

[Ed. Note.-For 'cases in point, see Cent. Dig. A mechanics' lien is statutory, and not con

vol. 44, Statutes, $ 310.) tractual, and a lien cannot be acquired unless the claimant complies with the statutory pro

Appeal from District Court, Weber County; visions.

J. A. Howell, Judge. [Ed. Note.-For cases in point, see Cent. Dig. Action by the Eccles Lumber Company vol. 34, Mechanics' Liens, $ 5.)

against Ann H. Martin, executrix of James 6. SAME-STATEMENT OF LIEN-SUFFICIENCY.

E. Horrocks, deceased, and others. From a Rev. St. 1898, § 1386, prescribes the acts necessary to be done to acquire a lien, and pro

judgment of dismissal, plaintiff appeals. Revides thāt the claimant shall make a statement

versed and remanded. of his demand after deducting credits and offsets. Section 1387 provides that liens against

T. D. Skeen, for appellant. T. N. Kimball, two or more buildings may be included in one for respondents. claim, provided the claim designates the amount claimed to be due on each building. Held, that a statement for a lien for materials furnished FRICK, J. This action was commenced for the erection of two buildings on one parcel to foreclose a mechanic's lien; judgment of of land, which sets forth the whole amount due,

dismissal being entered upon a demurrer to is sufficient to create a lien, though it does not set forth the amount claimed to be due for ma- the complaint. With the hope of assisting terials furnished on each building, for the state- to a better understanding of the views herement of the amount claimed, as required by sec

in after expressed, we will, in our own way, tion 1386, is to acquire a lien, while the statement required by section 1387 is for the pur

make a somewhat extended statement of the pose of enabling the court to protect the inter- facts contained in the complaint, which, after ests of the lien claimants among themselves. stating the corporate existence of the appel7. Same.

lant, is, in substance, as follows: Comp. Laws 1888, § 3812, provides that where one claim is filed against two or more

That James E. Horrocks, during his lifebuildings, the claim must designate the amount time, and at all times mentioned in the comdue on each building, otherwise the lien is post. | plaint, was the owner in fee of certain real poned to other liens, and "the lien of such

estate in Ogden City, Utah, described as claimant does not extend beyond the amount designated, as against other creditors having

follows: Part of lot twenty-seven (27), block liens, by judgment, * * * upon either


four (4), of South Ogden survey addition to such' buildings * or upon the land up- Ogden City, Weber county, Utah, to wit, beon which the same are situated.” Sess. Laws

ginning at the northwest corner of said lot 1890, p. 24. c. 30, amending the lien law, omits section 3812. Sess. Laws 1894, p. 44, c. 41,

twenty-seven (27); thence east 162 feet; amending the lien law, re-enacts the section as thence south 132 feet; thence west 30 feet; embodied in Rev. St. 1898, § 1387, providing thence north 66 feet; thence west 132 feet; that liens against two or more buildings may be included in one claim, provided the claim

thence north 66 feet to the place of beginning. designates the amount due on each building.

That on or about the 1st day of September, Held, that while the quoted portion of the orig. 1904, said Horrocks entered into a written inal section was in force, the court was com- contract with respondent Peterson, whereby pelled to enforce the penalty where the statement required by the section was omitted,

said Peterson agreed to build for said Horwhether the equities required it or not, while, rocks two frame dwelling houses upon the under the section, as amended, the court is at real estate above described, and to furnish liberty to enforce it or not, as equity demands, in each particular case.

and provide all of the lumber, building ma

terial, and labor necessary to complete said Morrison, Merril & Co. v. Clark, 59 Pac. 235, 20 Utah, 432, 77 Am. St. Rep. 924; Sanford v. Kunkel

houses, and to complete the same on or be(Utah) 85 Pac. 363.

fore the 1st day of November, 1904, all for the sum of $2,750, to be paid by said Hor- and she refused to pay the same or any part rocks to said Peterson; payment to be made thereof. A copy of the notice of intention in installments as the work on said houses to claim a lien is attached to said complaint, progressed, and the last payment of $300 and made a part thereof. The notice sets was to be made when said houses were fully forth in detail all matters required by seccompleted. That thereafter, on the 6th day tion 1386, Rev. St. 1898, but fails to state of September, 1904, said Peterson, by a writ- the amount due to the claimant on each ten contract, sublet the construction of said building separately. houses, together with the furnishing of cer- Upon substantially the foregoing facts, the tain specified material, to the respondent appellant prayed judgment for the amount of Fred. Howard. Said Howard agreed to com- its claim, to foreclose said lien, for the sale plete said houses within 36 working days of the property, and for general relief. Το from said date, and to receive the sum of this complaint the respondent Ann H. Martin, $1,575 for what he agreed to do, payments to as executrix of the said last will, interposed be made from time to time, the last payment a general demurrer upon the sole ground of $775 to be made when said houses were that said complaint does not state facts sufficompleted. That thereafter, on the 19th day cient to constitute a cause of action either of September, 1904, said Howard entered against her or the estate of the deceased. into a contract with appellant, whereby ap- and that the facts stated are insufficient to pellant agreed to furnish said Howard with entitle appellant to the relief prayed for. lumber and other specified material necessary The trial court sustained this demurrer, and to complete said houses. That in pursuance the appellant, refusing to further amend the of said agreement, and with the assent and complaint, but electing to stand thereon, approval of said Peterson, the original con. judgment dismissing the action and for costs tractor, and said Horrocks, the owner of the was directed to be rendered against the appremises above described, appellant, between pellant, from which judgment this appeal is the 19th day of September and the 25th day prosecuted. of October, 1904, sold, furnished, and lieliver- The only.question presented by this record ed said building material to said Howard up- therefore is, did the court err in sustaining on said premises to be and which was actuals said demurrer and in entering judgment disly used in the construction of said houses, | missing the action as above stated? The amounting in all, according to the prices trial court held that the notice of intention agreed upon, and after deducting all credits, to claim a lien was insufficient, for the to the sum of $710.48. That said contracts reason that the amount due on each one of were entire, and appellant is unable to state the two houses was not separately stated, the amount due or the sum paid on each of and that therefore there was no lien, and said houses separately. That the appellant hence the judgment dismissing the action. furnished all the lumber and building ma- In order to determine the correctness of the terial required to complete said houses. Thit court's ruling, it becomes necessary to anthe same was to be paid for on the 1st day alyze and construe sections 1386 and 1387, of the month succeeding the date of delivery. c. 1, tit. 39, Rev. St. 1898, entitled "MechanThat no payments were made for the con- ics' Liens.” This chapter is composed of struction work of said houses before the first 28 sections consecutively numbered from material was actually furnished by the ap- 1373 to 1100. In those sections is containpellant, except the sum of $600. That with- ed an entire system or scheme respecting in 40 days from the date of delivery of the the creation of mechanics' liens in favor of last material, the appellant filed with the persons who furnish any material, or perform county recorder of Weber county, and caused any labor, or render any skill or service to be recorded, a notice of intention to claim, for any improvements on land. By the vaand did claim, a mechanic's lien upon the rious amendments to the original law from real estate above described. The notice so time to time, and as the same has been filed and recorded was duly verified, and in construed by this and other courts under detail complied with the requirements of similar statutes. a mechanic's lien attaches section 1386, Rer. St. 1898, all of which is to the land, and, unless the person against stated in the complaint. That said Horrocks whom the claim for a mechanic's lien is made died on the 20th day of March, 1905, leaving has some interest or estate in the land upon a last will, wherein the respondent Ann II. which the improvement is made, no lien Martin was named as executrix, which will attaches to the improvement as such; furwas thereafter on the 29th day of June, 1907, ther, that a contract express or implied must duly admitted to probate, and that letters have been made with the owner of the land testamentary were duly issued to said Ann or his authorized agent in order to successH. Martin, and that she is the duly qualified fully initiate a lien. Morrison, Merril & Co. executrix of the last will of said James E. V. Clark, 20 Utah, 432, 59 Pac. 235, 77 Am. Horrocks, deceased. That the appellant duly St. Rep. 921; Early v. Burt, 68 Iowa, 716, presented its claim for the amount claimed, 28 N. W. 35; Huff v. Jolly, 41 Kan. 537, with interest and costs, to said executrix for 21 Pac. 616; Fetter v. Wilson, 51 Ky. 90; allowance against said estate. That the Wagar v. Briscoe, 38 Mich. 587–595. The same was disallowed and rejected by her, case of Sanford v. Kunkel (Utah) 85 Pac. 363, in no way departs from the doctrine that sections that are in seeming conflict with in order to acquire a lien an interest in other sections or parts of the same act. It the real estate upon which the improvements also occurs that in an act like chapter 1, are made is necessary. That case is based aforesaid, where rights are created, the upon the sound equitable doctrine that where methods to secure them are prescribed, and the law has given a right to one person it the procedure provided for to enforce such cannot be clestroyed by the wrongful act of rights as against the property, the owner, another.

and among other claimants, certain proviIlavins thus reached the conclusion that sions may be intended to affect some and not under our present statute a mechanic's lien others. Some of these provisions may be, and can only be acquired on land, and that the frequently are, intended for the benefit of buildings or improvements are to be taken some who may stand in a particular relation, as appurtenant merely, we will proceed to an and not to others standing in a different examination of our statutes to determine relation to either the owner or the property. whether the lien in question is void or valid. This is the case with respect to our mechanSection 1386, in wlich are contained the mat- ic's lien law, as we shall attempt to show. ters which must be stated in a notice of in- Moreover, as is well stated in Boisot on Metention to claim a lien, reads as follows: chanics' Liens, $ 4: "The doctrine upon which "Every original contractor, within sixty days the lien is founded is the consideration of after the completion of his contract, and natural justice, that a party who has en(very person save the original contractor hanced the value of property by incorporating claiming the benefit of this chapter, must, therein his labor or materials shall have a within forty days after furnishing the last

preferred claim on such property for the material or performing the last labor for any value of his labor or materials.” But the rebuilding, improvement, or structure, or for spondent contends, and the contention is any alteration, addition to, or repair thereof, sound, that a mechanic's lien is purely stator performance of any labor in or furnishing

utory, not contractual, and none can be acany materials for any mining claim, file for

quireil unless the claimant has complied with record with the county recorder of the coun- the several provisions of the statute creating ty in which the property or some part thereof the lien. We yield full assent to this docis situated, a claim in writing containing a trine, and likewise assent that, where the notice of intention to hold and claim a lien,

statute fails, courts cannot create rights, and and a statement of his demand, after deduct

should not do so by unnatural and forced ing all just credits and offsets, with the name construction. But, while all this is sound of the owner, if known, and also the name doctrine, courts should not withhold the benof the person by whom he was employed, or efits intended by a series of sections on one to whom he furnished the material, with a subject by a too literal or strict construction statement of the terms, time given, and con

of one section, or part of the whole series, ditions of his contract. specifying the time so as to destroy intended effects of other when the first and last labor was performed. parts. or the first and last material furnished, and

It is the true intent and spirit contained also a description of the property to be

in all the sections upon a given subject that charged with the lien, sufficient for identifi

constitutes the law upon that subject, not (ation, which claim must be verified by the

what may be contained in only one of them. oath of himself or of some other person." The rule that in our judgment should govern, This is followed by section 1387, which is as

is, we think, correctly stated in 20 Am. & follows: "Liens against two or more build

Eng. Ency. Law, on page 276, where the ings, mining claims, or other, improvements

author says: "A lien once acquired by labor owned by the same person or persons may be performed on a building with the consent included in one claim; but in such case tue of the owner should not, however, be defeated person tiling the claim must designate there

by technicalities, when no rights of others in the amount claimed to be due to him on are infringed, and no express command of cach of such buildings, mining claims, or

the statute is disregarded.” With these rules other improvements." These sections must and principles in mind, we are prepared to be construed in connection with each other,

proceed to an analysis of sections 1386 and and the two together must be construed in 1:387. Such an analysis becomes necessary, connection with other provisions contained

for the reason that this court has in no case in the whole of chapter 1 aforesaid. In

that we are aware of, either done so or order to arrive at the true legislative intent, attempted to do so. True, the question was courts cannot segregate a section or a part raised in the case of Garner v. Van Patten, of an entire chapter upon i giren subject, 20 Utah, 312, 58 Pac. 681, but, as the court and from such part alone determine the true in that case sustained the lien, although, as meaning or intent of the whole. Moreover, appears from the case, the claimant had not the object or purpose of the law as a whole strictly complied with the provisions of secmust be considered. If often oc(ur's that, tion 1387, the question here presented, it in a series of sections relating to one sub- decided at all, was adverse to the respondject, provisions are found in one or more ent in this case. The question in this case is, can a claimant obtain a valid lien as cient to acquire a lien and to protect the ownagainst an owner of property upon which the er of the property. To hold that a restatelien is claimed without including the state- ment of the amount of the claim in another ment required by section 1387? We think form is likewise necessary to acquire a lien, he can, for the following reasons:

unless the statute requires this to be done in It will be observed that by the provisions terms, is adding, by construction, an essenof section 1386, wherein are prescribed the tial not required by the statute. The connecessary acts to be done by the claimant to struction we place upon the sections quoted acquire à lien, it is provided among other gives the language contained therein full force things that the claimant shall make "a state- and effect. The statement required in sec. ment of his demand after deducting all just tion 1386 of the amount claimed is thus to (redits and offsets,” The owner is thus acquire a lien, and the statement in section fairly informed of

of the amount claimed 1387 is for the purpose above indicated. against his property. If the amount is cor- But it is further argued-and the argurect, he will have this amount to pay-no ment at first blush seems plausible that more, no less-to discharge the lien. If it while the effect of the two sections construed is incorrect, he is fully apprised of the fact, together was, as we claim it to be, as origiand can make his defense. He therefore is nally enacted, such is not the case now, benot concerned in case the lien is claimed on cause section 1387 has been amended, and more than one building erected upon one par- thereby its effect changed. The section corcel of land, what amount is due on one or the responding to the present section 1387 is other of the buildings. The lien is an en- found in ? Comp. Law's 1898, and is there tirety against the whole parcel of land and designated as section 3812, and reads as fol. the improvements appurtenant thereto. As lows: "In every case in which one claim is we read the mechanic's lien law, it was not in- filed against two or more buildings, mining tended that the provisions contained in sec- claims, or other improvements owned by the tion 1387 were intended either as an essential same person, the person filing such claim must in acquiring a lien, or made for the benefit at the same time designate the amount due of the owner. The lien is complete by com- him on each of such buildings, mining claims plying with section 1386. The statement of or other improvements, othericise the lien of the amount due on buildings separately, as such claims is postponed to other liens. The provided in section 1387, would be but a re- lien of such claimant does not cxtend beyond statement of the amount of the claim as re- the amount designated, as against other credquired by section 1336, in another form. As itor's haring liens, by judgment, mortgage we view it, this restatement was not intended or otherwise, upon either of such buildings as an essential part in acquiring the lien. It or other improrements, or upon the land upon could subserve no purpose to attain that end. which the same are situated.” The law was It could in no way affect the amount claimed recast and amended in 1890 (chapter 30, p. against the entire property. It, however, 24, Sess. Laws 1890), wherein section 3812 subserves a purpose in respect to different is omitted. It was again amended in 1894 lien claimants claiming liens against several (Sess. Law's 1891. p. 14, c. 11), where it houses or improvements erected on different was re-enacted in its present form. It is conparcels of land included in one lien. To te- ceded, in fact no one can dispute on reasontermine the equities as between lien claim- able grounds, that, with the italicized portion ants of the same class where the law requires added, the failure to state the amount due on them to prorate, it is important to determine each of several buildings or improvements the exact amount due to each claimant upon could not invalidate the lien as against each of the several buildings or improve- the property or the owner thereof, but ments erected on different parcels of land in its effect would only be to postpone the order to prevent one from getting more than lien to others in the same class. The loghis share in case the proceeds of a sale of

ic of this admission is a concession that the property are insufficient to satisfy all the the statement of the amount due on each claimants in full. This, however, does not building separately, as required by section affect nor concern the owner of the property, 1387, was not an essential part of the nor does it affect the validity of the lien as lien as such. It is urged that, since the such, as against him or the property. But Legislature eliminated the provision of what it is argued that effect must be given to all the effect should be in case of a failure to the requirements of the statute respecting the make the statement required in said section things to be done to acquire a lien. This is 1387, it was thereby intended to make the true, but, as we have attempted to show, a statement an essential part of the lien itself. discrimination must be made between the We cannot yield assent to this deduction. If things that are necessary to acquire a lien the Legislature intended that a failure to and those that are merely intended to protect make such a statement should invalidate the the interests of the lien claimants between or lien theretofore valid without it, we think it among themselves. The statements in sec- would have said so in plain terms. We think tion 1387, as we view it, clearly belong to the that the amendment should not, by mere conlatter class. The statements of the claimant struction, be given that effect unless no other provided for in section 1386 are made suffi- construction is reasonable. It frequently occurs that statutes are enacted declaratory of Conn. 578, 24 Atl. 521, 1056, 17 L. R. A. 314, some rule of law or equity. Our own stat- 29 Am. St. Rep. 222, is a fair type of the ates teem with such instances. The mere cases holding adversely to the views that fact, therefore, that it is enacted into a stat- we entertain. In that case, however, there ute does not create the right or remedy, as are two able dissenting opinions which, to the case may be. Both would exist without our minds, state the rule of construction rethe statute. The statute in such cases mere

specting mechanic's lien statutes correctly. ly states the right without having recourse The cases of Crawford v. Anderson, 129 Ind. to the original rule. The fact, therefore, of 117, 28 N. E. 314, Culver v. Elwell, 73 Ill. the omission of the equitable rule contained

536, and some others, perhaps, are of the in the italicized portion of the original section same class. None of these cases, however, of which section 1387 is an amendment in our

in our judgment, reflect the true spirit of judgment would not affect the court in work

our mechanic's lien law, and therefore we ing out equity between lien claimants. The

decline to follow them. But there is room purpose of the omitted portion was to fix the

for contention that the demurrer was erpenalty for the failure to state separately the

roneously sustained upon another ground. amount due on each building. Is it reason

As appears from the complaint, the conable to suppose that the Legislature, by re

tracts, and from the description of the moving the mild penalty, thereby intended to

property, the whole matter was treated as create a far more drastic one without saying

an entirety by all parties in interest. This . so in terms? We do not think so. We think

being so, the two buildings were not, within the effect of an omission to state the amount

the purview of our statutes, to be treated as claimed on each building with and without

separate buildings. This for the reason that the omitted portion of the section above

all liens of any class would prorate upon quoted amounts to this: While that portion

the whole, regardless as to whether the labor of the original section was in force, the

was performed on one or the other of the courts were compelled to enforce the penalty

buildings, or the material was used in the in every case where the statement required by

one or the other. The very purpose of secsection 1387 was omitted, whether the equi

tion 1387 being thus eliminated from the ties required it or not, while, under the pres

claim in this case, a noncompliance with it ent form of that section, the court is at liber

cannot affect any rights. This statement ty to enforce it or not as justice and equity

must, of necessity, be taken in the light of demand in each particular case. The mere

our construction of the several sections of fact that section 1387 is mandatory in form

our lien law and their effect in relation to does not necessarily make it so in its effects. It is an elementary rule of construction that

each other as explained in this opinion. We

desire to affirm again that, where a statute the mere form of the statute does not control in this respect. Sutherland on Stat. Const.

requires certain things to be done to acquire

a right, nothing short of a substantial com88 446, 447.

In view of the somewhat singular condi- | pliance with the statute will answer; but tions arising by both the terms as well as

where a statute requires things to be done in the conditions of our mechanic's lien law,

case certain conditions exist, then, before in view of the amendments and changes and

the statute can be operative, it must appear

that the conditions are in fact present. If omissions therein, we have been unable to find authorities directly in point upon the

we are right, therefore, that in this case the matters discussed herein. The following

lien and the buildings are to be treated as cases, however, in some degree at least, sup

an entirety, then the conditions provided for

in section 1387 did not exist and the section port all the views herein expressed. These decisions are based upon statutes similar in

is not applicable. These views, as we think, many respects to our own: Willamette Co.

are sustained by the following California V. Shea (Or.) 32 Pac. 759; Lyon v. Logan,

and other cases, which are based on statutes 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511;

very similar to our own: Booth v. Pendola, Phillips v. Gilbert, 101 U. S. 725, 25 L. Ed.

88 Cal. 36, 23 Pac. 200, 25 Pac. 1101; Warren 833; Wall v. Robinson, 115 Mass. 429; Lax

v. Hopkins, 110 Cal. 506, 42 Pac. 986; Post v. Peterson, 42 Minn. 221, 44 N. W. 3;

v. Fleming (N. M.) 62 Pac. 1087; Idaho M. Wheeler v. Ralph (Wash.) 30 Pac. 709. There

& M. Co. v. Davis, 123 Fed. 396, 59 C. C.

A. 200. are cases which hold that provisions substantially like those contained in section 1387

The judgment is therefore reversed, and are essentials in acquiring a lien. Whether

the cause remanded with instructions to the such provisions are part of the section

district court to vacate the judgment, re wherein are contained the essentials to ac

instate the case, overrule the demurrer, and quire a lien or not, we cannot determine permit the respondent to answer if she is. without recourse to the statute creating the

so advised, and proceed with the case in lien, and, not having access to them, we

accordance with this opinion. Costs of this cannot examine them. It is manifest, how

appeal to be taxed against respondent. ever, that the courts that have so held have construed the mechanic's lien law with un- MCCARTY, C. J., and STRAUP, J., condue strictness. Wilcox v. Woodruff, 61 cur.

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