Phillips v. Graves , 139 Or. 336 ( 1931 )

In Banc. A review of a few undisputed facts will readily reveal the issues awaiting our attention. One Ernest L. Graves was the owner of a lot in the city of Portland which he was improving with the construction of a dwelling house. May 3, 1926, before the work had been commenced, he borrowed from the defendant, B.A. Kliks, the sum of $3,500, and, in order to secure its repayment, executed upon that day a mortgage upon the aforementioned lot. It is the house, and not the lot, which the lien claimants seek to affect with their alleged liens (section 51-103, Oregon Code 1930). May 6, 1926, construction of a dwelling house was begun. Prior to that time Graves and one J.F. Shea, a plumbing contractor, agreed that the latter should perform the plumbing work upon this house for the stipulated sum of $510. December 18, 1926, when the plumbing work was 60 per cent complete, Shea died. Charles A. Shea, his son, was appointed administrator and subsequently completed the contract. After the plumbing had been roughed in, construction work upon the house ceased and was not resumed until some time in 1928. In July of that year, that being 18 months after the death of J.F. Shea, the administrator and Graves agreed that Shea should install in the house a furnace, a heater for the hotwater tank, a composition tile drain board in the kitchen, some tile work in the bathroom, and should also be responsible for connecting the water pipes of the house with the city's pipes in the street. For these additional items the executor made a charge of $318.50. September 22, 1928, after all of the above work had been completed, the administrator filed a lien notice in which he set forth the statement of claimant's demand as follows:

"Mr. Ernest L. Graves, In Account with Charles A. Shea, Administrator of the Estate of J.F. Shea, deceased,

"To labor and material furnished and delivered and used in the construction of said building, as per contract, $828.50."

The account did not segregate the total into items. Charles A. Shea, as administrator, seeks in this suit to foreclose the aforementioned lien. Although he appears in the title of the cause as a defendant, we shall hereafter deem Charles A. Shea, administrator, as a plaintiff or a claimant. The pleadings of the defendant Kliks alleged several defenses against the claim of Shea, but we shall confine our attention to the contention which urges that an administrator cannot file a lien notice for work done by his decedent, and to the further contention that, since the lien notice lumps in one total the claims for work done by the deceased, as well as for work done by the administrator, it will be impossible to sustain the lien even though we should conclude that the administrator would be entitled to a lien for the work done by himself.

The second of the aforementioned liens is claimed by one W.A. Lindsay, a carpenter, who alleges that he performed work upon the above premises of the reasonable value of $72. Kliks urges that Lindsay has been paid in full for all work performed by him upon the premises, and that his lien notice was not filed within 30 days after completion of the building, unless we should conclude that some minor items done within the 30-day period were not properly classifiable as repairs but, in fact, constituted construction work. These constitute Kliks' principal objections to the Lindsay claim.

Section 51-101, Oregon Code 1930, provides:

"Every mechanic * * * contractor * * * and other persons performing labor upon or furnishing material * * * used in the construction * * * of any building * * * shall have a lien upon the same for the work or labor done * * * or material furnished * * *."

Section 51-105, Oregon Code 1930, provides:

"It shall be the duty of every original contractor within 60 days after the completion of his contract * * * to file with the county clerk * * * a claim containing a true statement of his demand * * * which claim shall be verified by the oath of himself or of some other person having knowledge of the facts."

The first question presented by this appeal is whether the administrator can obtain a lien for work performed by the deceased and for which the latter filed no lien notice. This court has never before been called upon to decide this question. The nearest that any of our previous decisions approach this problem are those which hold that an assignee of a mechanic's account for unpaid wages is unable to obtain a lien. As early as 1870 this court in Brown v.Harper, 4 Or. 89, pointed out that the authorities treated the right to assert and perfect a mechanic's lien as a privilege personal to the mechanic and not transferable. After having made this observation the court intimated that an assignee of the account, before a lien notice had been filed, acquired nothing more than the chose in action and was unable to secure the benefit of a lien, but held that one who acquired his rights from another who had perfected his lien by filing the required notice acquired not only the account but the lien also. In Alderson v.Lee, 52 Or. 92 (96 P. 234), this court said: "The rule is that the right to perfect a lien, given by statute, is a privilege limited to the claimant, and that any assignment thereof before record carries only the chose in action constituting the basis of the intended lien." In Loud v. Gold Ray Realty Co., 72 Or. 155 (142 P. 785), this court reiterated the same principle and declared: "The right to a lien of this kind is a creature of the statute, and the right to perfect such a lien is limited to the persons who do the work or furnish the material or supplies. * * * The rule is settled in this state that, if a person has a right to perfect a lien of this nature, and he assigns his debt or claim to another, his assignee takes title to the debt, but has no right to perfect the lien." See to like effect: McKinley v.Tice, 129 Or. 190 (276 P. 1110). The plaintiffs question the wisdom of these decisions and contend that the assignment of the claim carries with it the security. The authorities are in sharp conflict upon the question whether the assignment of the claim authorizes the assignee to perfect the lien by filing the required notice. For a collection of decisions see Phillips on Mechanics' Liens (3d Ed.), §§ 54-56, and 40 C.J., Mechanics' Liens, p. 309, § 407. An examination of the authorities discloses that many of those which hold that the assignment of the debt authorizes the assignee to perfect the lien were affected by mechanics' lien statutes which demanded such conclusions. Of the decisions which hold that the assignee of the claim may perfect the lien Kinney v. Duluth OreCompany, 58 Minn. 455 (60 N.W. 23, 49 Am. St. Rep. 528) possibly was the least aided by a lien statute. We take from it the following excerpt:

"There is nothing in our statute, as there is in the statutes of some states, which forbids, directly or by implication, the assignment of such claims and demands; and it was held more than twenty-five years ago, in Tuttle v. Howe, 14 Minn. 145, 100 Am. Dec. 205, that a lien claim was capable of assignment, although in that case the required affidavit for a lien had been filed by the original creditor prior to the assignment. In that opinion, attention was called to the General Statutes of 1866, chapter 90, section 14, the then existing lien law, which gave to executors and administrators, as does the laws of 1889, chapter 200, section 17, the same rights as their testator or intestate would be entitled to, if living, and the well-settled general rule, that whatever rights of action or of property survive to an executor or administrator are assignable, was referred to and relied upon. No one would dispute the right of an executor or an administrator to file the lien statement required by the present statute, and if such be the case it logically follows that the assignee of the lien may make and file the lien statement. There is no good reason why the right to the lien should not be assignable before as well as after the statement has been filed, and there is an abundance of reasons why, if the right be assigned, the assignee should thereafter take all necessary steps required to preserve and collect his claim."

Of the cases taking the opposite view Mills v. LaVerne LandCo., 97 Cal. 254 (32 P. 169, 33 Am. St. Rep. 168), is a good representative. After the court in that decision had reviewed many of the authorities it expressed itself thus:

"Appellant invokes the rule that the assignment of a debt carries with it the lien by which it is secured. But, in the first place, that rule is not of universal application; it does not apply, for instance, to vendors' liens, or to the many liens which accrue to various kinds of bailees. And in the second place, at the time of the assignment of the debt to plaintiff in the case at bar, there was no lien securing it in existence; the assignors had merely a personal right to create a lien by complying with the statute. But the statute nowhere confers such right upon an assignee. It would be impossible for an assignee to comply with the statute, for the code (sec. 1187) provides that the contractor, or other persons mentioned in section 1183, must himself file a claim for record, stating the character of the labor or materials which he himself furnished for the building. And this shows clearly that the legislature was providing a lien only for a contractor, laborer, or materialman. It is urged that it would be a construction beneficial to the laborer to hold that he could sell or raise money upon his mere personal, inchoate right to procure a lien; but the legislature may not have thought that it would be advantageous to a laborer (for whose benefit the law was originally passed) to allow him the privilege of frittering away his wages at ruinous discount to money lenders and speculators. At all events, a court can neither make nor amend a statute. The law must be enforced as we find it enacted."

This state possesses no statute similar to that mentioned inKinney v. Duluth Ore Company, supra, granting to executors and administrators the same rights which their decedents possessed. It must be clear that such a statute could not be intended to do more than declare a general principle of law incapable of universal application. For instance, if the deceased at the time of his death had a promise of marriage from a woman, clearly the administrator could not present himself as the groom and demand that the ceremony proceed; nor could he insist upon performing any other outstanding contract in which the services to be performed were of a personal nature. Hence, such a principle of law, whether set forth in a statute or recognized in the decisions of the courts, would of necessity be general in nature and of but slight assistance because the real question awaiting answer is whether the privilege of a lien is personal to the claimant. We remain satisfied with the conclusions which this court has announced in its previous decisions, holding that the privilege of a lien is a personal one which an assignee of the chose in action can not perfect. If the reason for these holdings is the circumstance that an assignee is not named in the statute as one to whom a lien is available, the same reason demands a conclusion that, since an administrator is likewise not named in the statute, he also is unable to procure a lien when his decedent neglected to do so. Whether the effort is made by the administrator or by the assignee, the rights of each are derivative and are not for the personal benefit of the mechanic or materialman.

No amount of legal reasoning can grant an administrator a lien if the statute allows none, for liens are purely statutory. As we have seen, the word administrator does not appear in the statute. The latter affords no justification for granting an administrator a lien, unless we believe that a gap exists in the statute and that some rule of statutory construction justifies us in inserting in the gap the word administrator. Before we declare that a gap exists we ought first to find one. A reading of the statute readily induces the observation that it was prepared with meticulous care after much consideration of the problem of who should have the benefit of liens. The authors were evidently insistent upon fully cataloging all those whom they desired should have the right to procure liens. Our lien statutes can not be regarded as efforts to enunciate general principles only in the expectation that judicial construction will supply the needed details. Since the statute itself enumerates with painstaking care its beneficiaries, we find nothing which suggests a gap and grants us leave to fill it with the word administrator.

Nor are we aware of any rule of construction that will assist the claimant. It may be argued that the rule of equitable construction (Lewis' Sutherland, Statutory Construction (2d Ed.), § 587) is available, and that it serves as justification for including administrators within the category of those who may obtain a lien. It is by no means clear, however, that the same reasons which prompted the legislature to make available to a mechanic and a materialman a lien, as security for the payment of sums due them, would have persuaded the lawmaking body that the beneficiaries of deceased contractors, mechanics and materialmen, whoever they might be, should likewise be favored. It is altogether possible that the deceased would have preferred to waive his right to a lien.

Section 9-214, Oregon Code 1930, provides:

"In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted * * *."

In support of his alleged right to obtain a lien, the plaintiff Shea has called to our attention Fenton v. Fenton Building Co.,90 Conn. 7 (96 A. 145), and Iron Company v. Heating Ventilating Company, 5 Ohio Dec. 292. After claiming that in each of these cases the court recognized a right in a receiver to obtain a mechanics' lien, Shea urges that, therefore, a lien is available to an administrator also. In the first of these two cases no lien in behalf of a receiver was involved. The statement by the court concerning such a possible lien was obiter dictum only. Its observation was confined to the following words:

"We know of no reason why the receiver might not file a lien to secure himself for materials and labor furnished in carrying out the Fenton Company's contract."

It is not clear whether the court had reference to work done by the receiver or to the account owing at the moment when the receivership went into effect. The second of the two above cited cases involved no issue whether the state statutes authorized a receiver to file a lien. Apparently such a right was assumed by all. However, the court held that the alleged lien was void for other reasons. The defendant, in support of his contention that an administrator cannot file a lien notice for work done by his decedent, and thereby obtain a lien, has called to our attentionRichardson v. O'Connell, 88 Mo. App. 12, and Miller v.Hoffman, 26 Mo. App. 199. It is reasonably possible to so construe the holdings of the court in these two cases as to lend support to the defendant's contention. Telfer v. Kierstead, 9 Abb. Prac. (N.Y.) 418 which is cited by 1 C.J., p. 207, § 401, as the sole authority for the statement that "as a general rule, the right to file a mechanics' lien and to proceed for its foreclosure is not defeated by the death of a party" does not involve a set of facts similar to those before us, nor does it declare any principle of law helpful in the present instance. In that case the lien claimant was a subcontractor who apparently had performed his contract. He then sought the lien. The individual who died was not this subcontractor, but was the general contractor. No lien was sought by the estate of the latter. It is evident that the question presented by Shea's administrator was not before that court, nor did it intimate what disposition it would have made of this question had it been presented.

In view of the fact that some of the authorities regard a mechanics' lien as "created as soon as the labor was performed or furnished" (Gloucester Water Supply Co. v. City of Gloucester,179 Mass. 365 (60 N.E. 977)) it may possibly be argued that the lien was in existence before Shea died and that, hence, it descended to his estate upon his death. It may further be suggested that until the lien notice was filed the lien was a secret one (Charleston Lumber Manufacturing Co. v. Brockmyer,18 W. Va. 586) and that the only effect to be ascribed to the filing of the lien notice was the same as attaches to the recording of a mortgage. This court, however, has thus defined the nature of the claimant's rights in the premises prior to the filing of the lien notice:

"A laborer's or a materialman's lien is in the nature of a shadow which ultimately may, but does not cloud the title of, or attach to the real property benefited by an improvement, until the prescribed notice has been filed in the proper office within the time allowed, when the charge, which the law imposes as security, relates back to the beginning of the work. * * * Under enactments like those at present in force in Oregon, it is believed, however, that the right to a statutory lien is only inchoate, and that the lien does not become vested until the notice or claim has been filed, as required by law." Auld v. Starbard, 89 Or. 284 (173 P. 664).

In other words, those mentioned in the statute obtain a lien when the two following circumstances have taken place: (1) they have performed work or have supplied materials; and (2) have filed the required lien notice. Until these two developments have occurred the lien defined by the statute has not been created. This being true, no lien was in existence at the time of J.F. Shea's death, and, hence, none descended to his estate.

It is well established in this state that the rules of strict construction are applicable to our mechanics' lien statutes. This is especially true in the determination of those who are the beneficiaries of the statute. See McKinley v. Tice,129 Or. 190 (276 P. 1110), and see generally Phillips on Mechanics' Liens (3d Ed.), §§ 16-20, and 40 C.J., Mechanics' Liens, p. 50, § 10. Likewise, since it is well established that liens of this character are of purely statutory creation, anyone who claims such a lien must prove that he is within the group mentioned in the statute. We quote from Boise-Payette L. Co. v.Dominican Sisters, 102 Or. 314 (202 P. 554):

"The right to a lien being purely of statutory creation, whatever the statute makes necessary to its existence must be done, and one claiming the benefit of that statute must bring himself clearly within its terms. * * * We quote with approval from the case of Pilz v. Killingsworth et al., 20 Or. 432, 435 (26 P. 305), wherein this court said: ``The right to a lien is in derogation of the common law, and can only be established by a clear compliance with the requirements of the statute. The right is conferred by statute, and the party claiming such lien must show a substantial compliance with the statute'."

Summarizing the foregoing, it will be observed that (1) the statute does not mention an administrator, executor, nor the estate of a deceased as possible lien claimants; (2) this court has repeatedly held that an assignee of a mechanic's unpaid account cannot file a lien notice and thus obtain a lien because (a) the lien is personal to those named in the statute, and (b) because an assignee is not named in the lien act; (3) the rules of strict construction are applicable to those portions of the act with which we are concerned; (4) no lien was in existence at the time of J.F. Shea's death; (5) only the chose in action came into the possession of the administrator at the time of decedent's death; and (6) even if the rule of equitable construction is available it is by no means clear that the estate of a deceased should be included within the catalog of those who may file a lien claim. These circumstances and principles of law persuade us that the alleged lien of the administrator for work done by J.F. Shea was invalid.

We have not failed to consider the argument advanced by the lien claimant that upon the death of J.F. Shea the administrator was bound to complete the performance of his contract and is, therefore, entitled to a lien. This argument fails to persuade us for two reasons: (a) At the time of J.F. Shea's death Graves had already breached this contract by failing to proceed with the construction of the house, and also apparently by failing to pay Shea the sums earned by him up to that time. Eighteen months elapsed after Shea's death before Graves resumed construction work. The administrator was not required to proceed with a defaulted contract. Moreover, a lien is sought for several substantial items which were not part of J.F. Shea's contract. (b) Even if the administrator was required to proceed, that circumstance alone would not entitle him to a lien, for there are numerous personal representatives who, following the death of their principal, are compelled to complete performance of various contracts but are unable to obtain liens because the statute allows none.

The administrator argues that the lien should be sustained for the work performed by himself after the death of J.F. Shea. It will be observed from the account which appears in the lien notice that the items are not segregated but are lumped in one gross sum. It is impossible to determine from an inspection of the account what charge was made for the work performed by the administrator as distinguished from that which J.F. Shea performed. In Williams v. Toledo Coal Co., 25 Or. 426 (36 P. 159, 42 Am. St. Rep. 799), this court said: "An account containing a lumping charge, in which is mingled an item for which no lien is given, will not support a lien; and the defect cannot be cured by oral evidence, by means of which the items for which a lien is given may be separated from those for which a lien is not given." This rule has been applied many times. For a collection of instances see Christman v. Salway, 103 Or. 666 (205 P. 541), and see also McKinley v. Tice, supra, and JamesA.C. Tait Co. v. Stryker, 117 Or. 338 (243 P. 104). Having taken the view that the administrator cannot claim a lien for the work done by J.F. Shea, it necessarily follows that the account contains a nonlienable item and, since all sums claimed are mingled in a single charge, the alleged lien is void. In Miller v. Hoffman, supra, the same conclusion was reached upon facts very similar to those before us.

The contentions of the defendant concerning the alleged lien of W.A. Lindsay present issues of fact only; that is, whether he had received full payment and whether the last work performed upon the house should be deemed construction work or items of repair after completion. The law applicable to such issues is well settled and has been many times applied in other decisions of this court. We find no occasion to state once more these commonplace principles of law, nor to set forth herein our review of the testimony. The matter received the careful attention of the circuit judge whose findings are in favor of the lien. Similar consideration bestowed upon the issues by this court has brought us to the same conclusion as the circuit judge.

It follows from the above that the decree of the circuit court will be reversed as to the Shea lien but affirmed as to the Lindsay lien. Lindsay may recover his costs and disbursements, but these items will be allowed to neither party for the Shea claim.

BROWN, BELT, CAMPBELL and KELLY, JJ., concur.