Edmiston v. Kiersted , 140 Or. 299 ( 1932 )

The opinion of the majority holds that an owner's interest can never be subjected to a lien unless the notice mentioned in that part of section 51-101, Oregon Code 1930, quoted in the majority opinion, has been given to the owner. The statute just mentioned makes provision that materialmen must give notice to the owner within five days after their first delivery of material. It seems clear that the purpose of that notice is to apprise the owner of the names of the different materialmen and thus enable him to withhold payment from the general contractor of sufficient sums to cover all indebtedness incurred for material. Our code contains another provision (1923 Session Laws, chap. 132, § 51-104, Oregon Code 1930), enacted for the purpose of subjecting the interest of others than the builder to the lien of contractors, mechanics and materialmen. It is this section of our laws which is applicable to our present suit. It provides:

"Every building, or other improvement mentioned in section 51-101, except improvements made by any person other than the landowner in drilling or boring for oil or gas, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this act, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, give notice that he will not be responsible for the same by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situated thereon."

It seems evident that the plain purpose of this law is to subject to mechanics' and materialmen's liens the interest of every claimant to the property when it appears that he "obtained knowledge of the construction, alteration or repair" of the building by any means whatsoever and failed to "give notice that he will not be responsible for the same by posting a notice in writing." This section of our laws received application inSchram v. Manary, 123 Or. 354 (260 P. 214, 262 P. 263);Randolph v. Christensen, 124 Or. 661 (265 P. 797); in decisions which subjected the interest of vendors, who had failed to post notices of nonliability, to the liens of claimants who had performed services in the erection of buildings under the direction of the vendee.

If the decision of the majority held that the vendor had no knowledge of the improvements which were being prosecuted upon his land, I would agree with the prevailing opinion, but, under the circumstances, dissent.