Bell v. Bosche , 41 Neb. 853 ( 1894 )

Irvine, C.

This is an appeal by Bell from a decree denying a mechanic’s lien which he sought to foreclose against property alleged to belong to the defendant Bosche. The conclusion reached upon one of the questions presented renders a statement or decision of the others unnecessary.

The petition alleged that the building, out of the erection of which plaintiff's claim accrued, was situated on lot 12, block 1, Poppleton Park, an addition to Omaha, but by mistake the premises were described in the claim of lien as the north half of lot 13, block 11, Poppleton Park; that this mistake was caused by-a misdescription of the property given to plaintiff by Bosche, willfully and for the purpose and intention of misleading the plaintiff in filing his lien. The answer placed these allegations in issue. We are satisfied from an examination of the evidence that the plaintiff wholly failed to establish the allegations by which he sought to relieve himself from the effect of the erroneous description and procure a reformation of the lien. The plaintiff testifies that he remembers distinctly that he asked Bosche for a description of the lot before any work was done, and this for the purpose of obtaining a permit to erect the building. Further, “ I recollect distinctly that Mr. Bosche told me the building was to be erected on the north half of lot 13, in block 1, in Poppleton Park.'' But the lien as filed described the north half of lot 13, in block 11, in Poppleton Park; so that if all Mr. Bell says be true, he did not rely upon the description given him by Bosche and did not follow it. .Mr. Bosche asserts that he never gave Bell any description of the property. Bell testifies that the claim of lien was prepared under the instructions of Mr. Walz, his foreman, during Bell's absence, and that on his return Bell, supposing Walz had used the description in the permit and that it was correct, signed his name and made oath to the claim. If the mistake occurred in this way, it evinces a high degree of negligence on the part of Bell in making oath to a paper without examining it; but Walz also contradicts Bell. The evidence was clearly insufficient to establish the facts pleaded as estopping Bosche from asserting the error in description, and it is, therefore, unnecessary to consider whether or not such facts, if established, would be legally sufficient for that purpose.

We are, therefore, brought to a consideration of the question whether, in the absence of circumstances operating by way of estoppel, a lien can be enforced on a claim’ which does not describe the property sought to be charged, or whether a court of equity can reform an erroneous description, it not appearing that the rights of third persons have intervened. In Holmes v. Hutchins, 38 Neb., 601, a similar question was considered, and it was there held that if the required statement be so defective as not to impart notice of the property sought to be charged, there survives, after four months, no right to the lien as against purchasers. In that. case an effort was made to reform the description as against a purchaser after the expiration of the statutory period for filing liens, and the language of the court is confined to the question presented; but the authorities there cited in support of the conclusion reached, that there can be no such reformation, draw no distinction between cases where new rights have accrued and others. Indeed, so far as the facts appear, in none of these cases were there intervening rights. To the cases referred to in Holmes v. Hutchins may be added Goss v. Strelitz, 54 Cal., 640; Vreeland v. Boyle, 37 N. J. Law, 346; Dearie v. Martin, 78 Pa. St., 55; Drake v. Green, 48 Kan., 534. All were cases against the original owner, at least so far as the reports show. In Goss v. Strelitz, supra, the reason which prevents a reformation is stated to be that the instrument is not in the nature of a contract to be reformed in appropriate cases, but a prerequisite to the maintenance of a proceeding giving an ■extraordinary remedy, to secure the benefit of which the plaintiff must comply with the terms on which the statute affords him relief. In Vreeland v. Boyle, supra, this reason is supplemented by showing that the claim is not a pleading or proceeding which may be amended under statutes relating to procedure. We hold, therefore, that a substantial compliance with those provisions of the statute relating to the filing of a sworn statement is a prerequisite to the enforcement of a mechanic’s lien, and that where the statement filed is so defective as not by its terms to impart notice as to the property sought to be charged, such defective statement cannot be reformed, after the expiration of the period allowed for filing such claims, and that no lien attaches, even as against the owner at the time the labor was performed or the material furnished. This is true at least when no facts exist sufficient upon general principles, to-constitute an estoppel against the owner. The claim of lien being radically defective, the,decree of the district court was right and is

Affirmed.