Goodrich Lumber Co. v. Davie , 13 Mont. 76 ( 1893 )

De Witt, J.

A recent case in Indiana (1890) says: “The principle drawn from the authorities seems to be this. That a description in a notice of lien cannot be supplied by oral evidence, but that an ambiguity may be explained, and the premises identified.” (McNamee v. Rauck, 128 Ind. 59.) The description in the notice of lien in the case at bar is not defective, or insufficient, or uncertain. It does not come within the class of eases where descriptions of such a nature have been allowed to be helped by averment. The description of the ground is perfectly definite and certain. The only difficulty is that it was a wholly wrong description. The Indiana case remarks that a description in a notice cannot be supplied by oral evidence. That is what is sought to be done in the case at bar — to substitute in the complaint a lot wholly different from the one particularly described in the notice of lien. Again, it is said in the Indiana case: “But the ambiguity may be explained, and the premises identified.” There is no ambiguity here, either latent or patent. The notice of lien clearly and particularly describes lot 14. It is alleged in the complaint that lot 13 was the only one in block 200 upon which the defendant Gelsthorpe had any buildings, and plaintiff contends that the buildings were a sufficient identification of the laud; and cases are cited where a description of the building was held to sufficiently identify the land. For instance, “ the brick city hall to be erected by the city of Hillsboro.” (Scholes v. Hughes, 77 Tex. 482.) Again, “a mill belonging to the party of the second part, at Marseilles,” when the party had but one mill. (Strawn v. Cogswell, 28 Ill. 457.) And other cases where the building was some public or well-known structure, and where the description relied upon was the building alone, and there was no attempt to describe the land, either by metes and bounds, or by lot and block. But in the case at bar the description of the building is, “that certain frame buildings and outhouses.” That description would apply to hundreds of premises in a large city. It is not like a city hall (Saholes v. Hughes, 77 Tex. 482) or the works of the La Crosse City Gas Light and Coke Company (Brown v. Coke Co. 16 Wis. 555). The lienor herein does not depend upon the building and outhouses for description, but gives force, in his notice, to what he calls a “more particular description” of the premises: that is, by lot and block, on an official plat filed in a public office. It is said in Northwestern Cement etc. Co. v. Norwegian etc. Seminary, 43 Minn. 452: “In this state the important means of identifying real estate is, in the case of urban property, the description according to the plat.” The same system obtains iu this state. In the cities and towns, and even small villages, the system is well nigh universal to describe land by lot and block of the plat of an official survey filed in the proper public office.

Our statute provides: “But any error or mistake in said .... description shall not affect the validity of said lien, provided the property may be identified by said description. (Comp. Stats., div. 6, § 1371.) In the description under consideration there is no error or mistake. “Lot 14 in block 200” is certain, definite, or uumistakeable. By it one would identify that piece of ground as officially platted. By it he would not identify lot 13. A description of lot 14 cannot sustain a lien for materials furnished and used in the erection of a building on lot 13. The judgment of the court was that the plaintiff take nothing by its complaint, and that said defendants Gelsthorpe and Welch recover their costs. But a cause of action is stated in the complaint against Davie, the contractor, on an account for the materials furnished to him; therefore the judgment that the plaintiff take nothing by its complaint was not warranted, because all that the» court reached was that there was not a cause of action against the owner and a mortgagee. The district court is therefore directed to modify the judgment so that it shall be to the effect that the plaintiff take nothing by its complaint as against Gelsthorpe and Welch only. The judg_ ment as so modified is affirmed.

Modified.

Pemberton, C. J., and Harwood, J., concur.