Strickland v. General Building & Masonry Contractors, Inc.

MORRIS, Judge.

Defendants present two questions for our determination. First, they contend that plaintiff’s notice of lien is invalid because it fails to specify the exact date of the first furnishing of labor and materials. Plaintiff’s notice states only that the stonework was last furnished “in February 1973”. However, we do not deem it necessary to discuss this contention inasmuch as our treatment of the second contention is dispositive of the appeal.

Defendants next contend that plaintiff’s lien is invalid because the notice and claim of lien was not filed within 120 days after the last furnishing of labor and materials as required by G.S. 44A-12 (b). This contention is based upon the statement of plaintiff in the claim of lien that materials were last furnished upon the property on 28 March 1973. Since 28 March 1973 is more than 120 days prior to 27 July 1973 when the claim was filed, defendants argue that the lien itself was void.

G.S. 44A-12(b) provides as follows:

“Time of Filing. — Claims of lien may be filed at any time after the maturity of the obligation secured thereby but not later than 120 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien.”

Although the statute clearly requires that the lien be filed within 120 days after the last furnishing of labor or materials, there is no requirement that a mechanic, laborer, or materialman state in his claim of lien the date of the last furnishing. Plaintiff has, therefore, placed in his claim of lien information not required by the statute. However, if we were to treat this information as a mere surplusage, we would do injury to the purpose of the lien statute.

It is well established that a lien is lost if the steps required to perfect it are not taken in the same manner and within the time prescribed by law. Priddy v. Lumber Co., 258 N.C. 653, 129 S.E. 2d 256 (1963) [a suit between a holder of a deed of trust and a lienor-judgment creditor to establish the priority of their liens]. Although the claim of lien filed by plaintiff contains information not required by the statute, it reveals on its face that it was filed more than 120 days after the stonework was last furnished by plaintiff. Thus all potential purchasers or lenders interested in the subject property and relying on the public record would be advised that the claim of lien had not béen filed in accordance with the statute, and was not enforceable against the property. To require the title examiner to go outside the public record to discover that the stonework was in fact — as plaintiff claims — completed less than 120 days prior to the filing would in our opinion impose an undue burden on the title examiner and would damage the principle of reliance upon the public record.

We, therefore, hold that the trial court erred in denying defendants’ motion to cancel the notice of lien. Plaintiff has, by his own hand, placed on the public record information asserting that he has failed to comply with the Mechanics’, Laborers’ arid Materialmen’s Lien statute. The lien itself is, therefore, invalid, and plaintiff may not enforce it against the property in quéstion.

Reversed.

Judge Hedrick concurs. Judge Baley dissents.