1. A suit to recover judgment for labor performed by the
plaintiff upon a quartz mill and mine in Montana Territory, and to
enforce a mechanic's and laborer's lien upon the defendant's
interest in the premises for the payment of the judgment, is a suit
in equity, requiring specific directions for the sale of the
property such as are usually given upon the foreclosure of
mortgages and the sale of mortgaged premises. The fact that
according to the modes of procedure adopted in the territory, a
personal judgment for the amount found due is usually rendered in
such cases, with directions that if the same be not satisfied out
of other property of the debtor, the property upon which the lien
is adjudged to exist shall be sold and the proceeds applied to its
payment does not change the character of the suit from one of
equitable cognizance and convert it into an action at law.
2. Mechanics and laborers asserting a lien upon real property
for their work and claiming priority over mortgagees and others who
have acquired interests in the property must furnish strict proof
of all that is essential to the creation of the lien, and that
requires them to prove when the work was commenced, the character
of the work, and when it was completed.
3. Work was done by the plaintiff under a contract with the
defendant made Aug. 1, 1869, on two distinct parcels of property
situated in Montana Territory, one a quartz mill and the other a
quartz mine, separated a considerable distance from each other. The
work on the mill was completed in
the fall of 1869 or in the summer of 1870. Nothing was done
afterwards except to make occasional repairs as they were needed.
The work on the mine was done in 1870, but it was not shown when
the work was commenced. In June, 1871, upon an accounting between
the plaintiff and the defendant, there was found due to the
plaintiff a large sum, which the parties agreed should be a lien
upon the mill and mine in equal proportions. Notices claiming a
lien upon each for the amount as thus apportioned were accordingly
filed in the recorder's office.
Held: 1st, that a lien did
not arise from this contract of apportionment, or from the special
contract under which the work was done, but from the work itself,
which was performed upon the property; 2d, that the work being done
on different parcels of property, the lien claimed on one was to be
considered separately from the lien claimed on the other; 3d, that
the notice, so far as the mill was concerned, was filed too late,
the statute requiring the notice to be filed within sixty days
after the completion of the work, and that the occasional repairs
subsequently made could not be added to the work done months
before, so as to render the whole work one continued performance,
for which a single lien could be claimed within sixty days after
the last repairs; 4th, that it not appearing when the work upon the
mine was commenced in 1870, it will not be presumed that it was
commenced before the mortgage of the defendant was executed and
recorded in September of that year, so as to give to the lien for
the work priority over the mortgage.
Page 94 U. S. 546
MR. JUSTICE FIELD delivered the opinion of the Court.
This is a suit to recover a judgment against the defendant,
Charles Hendrie, for labor performed by Alvord upon a quartz mine
and a quartz mill in Montana Territory of which that defendant is
alleged to be part owner, and to enforce a mechanic's and laborer's
lien upon his interest in the premises for its payment. It is
essentially a suit in equity, requiring specific directions for the
sale of the property such as are usually given upon the foreclosure
of mortgages and sale of mortgaged premises. The fact that,
according to the modes of procedure adopted in the territory, a
personal judgment for the amount found due is usually rendered in
such cases with directions that, if the same be not satisfied out
of other property of the debtor, the property upon which the lien
is adjudged to exist shall be sold and the proceeds be applied to
its payment does not change the character of the suit from one of
equitable cognizance and convert it into an action at law. It is
not an uncommon practice in many of the states for the courts to
direct, in suits for the foreclosure of mortgages, a formal
rendition of judgment for the amount due upon the obligations
secured instead of directing a reference to a master to ascertain
and report the amount.
Rollins v. Forbes, 10 Cal. 299. The
complaint is not open to objection for misjoinder of causes of
action, because the personal judgment and the enforcement of the
lien are both prayed for at the same time. The rendition of the
judgment is only a mode of judicially declaring the amount due, and
in no respect affects the equitable jurisdiction of the court. The
case is therefore, properly brought here by appeal.
It appears from the record that on the 1st of August, 1869, the
plaintiff entered into a contract with the defendant Hendrie to
work for him in erecting and repairing a quartz mill and in opening
and developing a quartz mine in Montana Territory for the sum of
$2,500 a year. The mill was distant about a quarter of a mile from
the mine, and it was part of the contract that one-half of the time
of the plaintiff should be devoted to each.
Page 94 U. S. 547
The erection of the mill was commenced in August, 1869, and
occupied about forty days. It was substantially completed in the
fall of that year. Some iron guides only were put in during the
summer of 1870. After that, nothing was done on the mill except to
make occasional repairs as they were needed.
It does not appear when the work was commenced on the mine. The
plaintiff states that in 1870, he put up steam hoisting works, laid
tracks, and made cars, and did everything necessary to keep the
mine in repair, but as to the commencement of the work in that year
he is silent. The notices claiming a lien, and the affidavits
attached, are not evidence on this point against the
defendants.
The statute was designed to give security to those who, by their
labor, skill, and materials, add value to property by a pledge of
the interest of their employer for their payment, and for that
purpose it subordinates all other interests acquired subsequent to
the commencement of their work, although no notice that a lien may
even be claimed is required except within sixty days after the work
is completed. Mortgagees and others acquiring interests in property
against which such a lien is sought to be enforced have a right,
therefore, to call for strict proof of all that is essential to the
creation of the lien, and that includes proof of the commencement
of the work, of its character, and of its completion. The
commencement of the work must be shown, for from that date the lien
attaches, if at all. The character of the work must be shown, for
it is not for all kinds of work that a lien is allowed. The
completion of the work must be shown, for notice of claiming a lien
must be filed in the recorder's office within sixty days from that
time. This proof must be furnished by the party who asserts the
existence of the lien.
From this statement, the question as to the priority of the lien
claimed by Alvord over the mortgages of the defendant Davis may be
readily answered. The work being done on different parcels of
property, the lien claimed on one is to be considered separately
from that claimed on the other. The parties, the plaintiff and
Hendrie, had an accounting on the 25th of June, 1871, when over
$3,700 were found due to the plaintiff. It was then agreed between
them that this
Page 94 U. S. 548
amount should be a lien upon the mill and mine in equal
proportions. Notices claiming a lien upon each for the amount thus
apportioned were accordingly filed in the recorder's office on the
following day. A lien did not, however, arise from this contract of
apportionment or from the special contract under which the work was
done; it arose from the work which was performed upon the property.
It is the work of mechanics and laborers, or the material furnished
by them or others, by which value is added or supposed to be added
to property, which creates the lien under the statute upon notice
claiming it being seasonably filed in the proper recorder's
office.
So far as the mill was concerned, the notice was filed too late.
That building, as already stated, was completed in 1869, or at
least in the summer of 1870, when the iron guides were put in.
Occasional repairs, if subsequently made (of which, however, the
record furnishes no evidence), could not be added to the work
performed in the erection of the building months before so as to
render the whole work one continued performance for which a single
lien could be claimed within sixty days after the last repairs.
So far as the mine is concerned, there is no evidence of the
time in 1870 when the work upon it commenced. The hoisting works
were put up, the track was laid, and the cars were made some time
during that year; but beyond this, we are not informed. All this
might have been done after the last mortgage held by the defendant
Davis was executed and recorded in September of that year. We
cannot presume, in the absence of proof to that effect, that the
work was commenced before that time and thus give to the lien for
the work priority over the mortgage. The failure of the plaintiff
to show the commencement of the work when the proof of that fact
was within his power leads to the conclusion that the truth would
not have subserved his interests. At any rate, as the case stands,
there is nothing in the record which warrants a subordination of
the interests of the mortgagee to the claim of the plaintiff. The
finding of the district court that one-half of the amount due to
the plaintiff was a valid lien on the mine from Aug. 1, 1869, and
the other half a lien on the mill from that date, does not help the
case, for that finding is only a conclusion
Page 94 U. S. 549
of law. No facts are stated upon which the conclusion can be
sustained.
Whilst the statute giving liens to mechanics and laborers for
their work and labor is to be liberally construed so as to afford
the security intended, it cannot be too strongly impressed upon
them that they must not only bring themselves by their notices, as
was done in this case, clearly within the provisions of the
statute, but they must be prepared, if the priority of their lien
be disputed, to show a compliance with those provisions and to fix
with certainty the commencement and completion of their work, in
which particulars the proof here is wanting.
The decree of the district court of the territory must therefore
be modified so as to give the mortgages held by the defendant Davis
a priority over the lien of Alvord in the distribution of the
proceeds arising upon the sale of the interest of the defendant
Hendrie, and the cause will be remanded to the supreme court of the
territory with directions to modify the decree in that respect, and
it is
So ordered.
