Murray v. Swanson , 18 Mont. 533 ( 1896 )

HüNT, J.

The portion of section 1374, division 5, general laws, 1887, applicable to the present controversy, is as follows: “ The liens for work or labor done, or material furnished, as specified in this chapter, shall be prior to and have precedence over any mortgage, incumbrance or other lien made subsequent to the commencement of work on any contract for the erection of such building, structure or other improvement. ’ ’

A former statute of the territory of Montana provided that ‘ ‘ The liens for work or labor done * * * shall have priority * * * and shall be preferred to all other liens and incumbrances which may be attached * * * . to the extent aforesaid * * * made subsequent to the commencement of said building, erection or other improvement. ’ ’ (Gen. Laws 1879, div. 5, § 827.)

In Davis v. Bilsland, 18 Wall. 659, the supreme court of the United States decided that, under this statute quoted above, liens secured to mechanics and material men • had precedence over all other incumbrances put upon. the property after, the commencement .of, the building. This construction of the statute was regarded as just, the court there saying, “why should a purchaser or lender have the benefit of the labor and materials which go into the property, and give it its existence and value?”

The same view of the statute was taken by the supreme court of the territory in Mason v. Germaine, 1 Mont. 263, where the court were of opinion that the statute expressly gave preference to liens of mechanics and material men over any encumbrance made subsequent to the commencement of the building. Lt will be observed that there is a difference in the wording of the statute construed in Davis v. Bilsland, supra, and section 1374, quoted above. The latter reads thus, ‘ ‘ Subsequent to the commencement of work on any contract for the erection of such building, structure or other improvement while the former reads, “subsequent to the commencement of said building, erection or other improvement. ’ ’ But this difference is expressly referred to and commented upon in Merrigan v. English, 9 Mont. 113, where Justice Bach, for the court, said :

£ ‘But there is no difference in the meaning. When Crawford commenced to erect the building, work was commenced on a contract for the erection of the building ; in other words, that was ‘the commencement of the building. ’ Such a construction of the statute as is stated in the case last cited is not unjust. The mortgagee knew the law. He knew, or could have known, that work had been commenced on a contract for the erection of a building. He knew that persons*other than the original contractor would perform work and labor which would improve the property upon which, as security, he advanced the money. He knew of the lien which such subcontractor could acquire. To hold otherwise would be to destroy the very purpose of this law, which was to give to the subcontractor a direct lien for the value of his labor, because it is evident, if the contrary was held, such liens would be made worse than a farce by so-called blanket mortgages filed the day after the improvement was commenced. ’ ’

The case is therefore, upon this point, determined by these former constructions of the Montana lien statutes, and the court properly adjudged the mortgage a subsequent lien to that of plaintiffs.

The district court allowed the respondents $50 attorney’s fee, as part of the costs. This was authorized by act of the sixteenth legislative assembly, approved March 14, 1889. (Wortman v. Kleinschmidt, 12 Mont. 316.) Respondents’ counsel now asks this court to allow him, as costs, a reasonable fee for his services in the supreme court.

The only question involved is whether the statute referred to, allowed attorney’s fees as part of the costs in the supreme court, as well as the district court. Upon the general principle that costs are recoverable at law only by force of statute, and depend upon the terms of the statute strictly construed, we do not find authority in the statute to allow counsel fees in the supreme court. The statute is a severe one, at best, and ought to be strictly construed. We therefore think that its application should govern attorney’s fees taxable as costs only in the court in which the action is instituted. Judgment affirmed.

Affirmed.

PembbrtoN, C. J. concurs. De Witt, J.: I concur in the judgment, but in the allowance of the attorney’s fee in the district court only on the ground of stare decisis and res adju-dicata. (Wortman v. Kleinschmidt, 12 Mont. 316 ; Helena S. H. & S. Co. v. Wells, 16 Mont. 65.)