Beach & Adams Builders, Inc. v. Northwestern Bank

220 S.E.2d 414 (1975) 28 N.C. App. 80

BEACH AND ADAMS BUILDERS, INC.
v.
The NORTHWESTERN BANK, a North Carolina Corporation, and C. Banks Finger, as Trustee for the Northwestern Bank.

No. 7524SC545.

Court of Appeals of North Carolina.

December 17, 1975.

Charlie R. Brown, Blowing Rock, for plaintiff appellant.

Holshouser & Lamm by Charles C. Lamm, Jr., and Finger, Parks & Greene by C. Banks Finger, Boone, for defendants appellants.

MORRIS, Judge.

Plaintiff contends that the trial court erred in finding that plaintiff had failed timely to commence its action to enforce its Claim of Lien and that the late commencement discharged the lien of record. Plaintiff argues that the entry of the 16 November 1972 date in the Claim of Lien was a "clerical error" and ". . . it should be allowed to show, in a trial on the merits, that the actual date of last furnishing was a date other than that set forth in the Claim of Lien." G.S. 44A-16(3) provides, inter alia, that any lien may be discharged for ". . . failure to enforce the lien within the time prescribed in this Article". G.S. 44A-13 provides that an action to enforce the lien may be instituted in any county in which the lien is filed but "no such action may be commenced later than 180 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien". The law in this general area recently has been re-examined by our State Supreme Court in Canady v. Creech, 288 N.C. 354, 356, 218 S.E.2d 383 (1975), wherein the Court held that when the date of first furnishing of labor and material listed in a Claim of Lien contains an "`. . . obvious clerical error which could not mislead any interested party. . .'" the actual purported date of first furnishing should be given effect and the purportedly incorrect listed date shown on the face of the claim should be disregarded. (Emphasis supplied.) (Citation omitted.) Justice Exum, writing for the Court in Canady, noted, however, that they were ". . . not dealing . . . with priorities of competing liens nor with any party who relied on the claim of lien as filed." Id. 288 N.C. at 356, 218 S.E.2d at 385.

Here, we are concerned with the priority of competing claimants. Moreover, in this situation, nothing appearing on the face of the Claim of Lien would indicate to any reader that there was an obvious error. This case involved a purported error in terms of several critical weeks prior to the time of filing the claim. It is difficult to see how any record examiner would be able to recognize any error, clerical or otherwise. For the examiner, 16 November 1972 is as realistic and logical a date as 12 December 1972. This is considerably dissimilar to the problem presented in Canady, where there were no competing claimants to the property and where the listed date of first furnishing was incongruously stated as being subsequent to the date of filing of the claim. Thus, in Canady, the Court could state that "`[n]o one need misunderstand it who should become interested in the property'". (Emphasis supplied.) Id. at 357, 218 S.E.2d at 385. (Citation omitted.) The Court further approvingly cites and quotes from the case of Schwartz v. Lewis, 138 App.Div. 566, 568, 123 N.Y.S. 319, 320 (Sup. Ct.App.Div.1910), wherein a New York Court held that "`[i]f by any fair construction the statement can be read so as to show the date intended, and that date is substantially correct, effect will be given to the notice.'" Id. at 357, 218 S.E.2d at 385. Here, no "`fair construction'" of the claim as written would indicate to the reader that the last furnishing was actually several weeks later than that actually shown on the face of the Claim of Lien.

Thus, we hold that this case is governed by our previous decision in Strickland v. Contractors, Inc., 22 N.C.App. 729, 207 S.E.2d 399 (1974), and distinguishable from the recent Supreme Court decision in Canady. In Strickland, we wrote that ". . . a lien is lost if the steps required to perfect it are not taken in the manner and within the time prescribed." Strickland, at p. 731, 207 S.E.2d at p. 400. We further held in Strickland that to force the examiner to go outside the record as filed would ". . . impose an undue burden on the title examiner and would damage the principle of reliance upon the public record". Id. at 732, 207 S.E.2d at 401. We believe these principles remain sound in North Carolina after Canady, but for those rare instances in which an examiner should be able to detect errors which on the face of the record seem incongruous, obvious, self-apparent and easily reconcilable.

Plaintiff also contends that where the date of last furnishing is not statutorily required, the inclusion of the date ". . . should be completely disregarded . . ." and considered "unnecessary surplusage". We disagree. Though this information is not required, it cannot be deemed mere "surplusage" when supplied even voluntarily. To do so ". . . would do injury to the purpose of the lien statute . . ." in that title examiners would, barring an obvious error, reasonably rely on the date actually furnished. Strickland, supra, at 731-732, 207 S.E.2d at 400.

Plaintiff next maintains that the trial court erred in finding that plaintiff had failed to produce any evidence or affidavits at the hearing on the motion for summary judgment which would indicate that the last date of furnishing was other than the date shown in the Claim of Lien. We find no merit in this contention. Even taking the verified complaint as an affidavit, the plaintiff merely presents a bare allegation that the date of last furnishing is different from that stated in the Claim of Lien. Moreover, barring an obvious error, easily discernible to the title examiner, the plaintiff is bound by the date stated in his Claim of Lien. G.S. 44A-12(d). Under G.S. 44A-13, the claimant has 180 days from the date of last furnishing of labor and material to commence legal action. In this case, plaintiff has simply failed to meet this statutorily mandated standard.

The trial court correctly found no genuine issue of material fact and we find no error in the summary judgment granted therein.

Affirmed.

MARTIN and CLARK, JJ., concur.