Tulloh v. Boyce

KERRIGAN, J.

This is an action to foreclose a mechanic’s lien. The appeal is from the judgment in favor of the interveners and against the plaintiff, and from an order denying plaintiff’s motion to vacate the judgment and con

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elusions of law, and to enter a different judgment and conclusions of law upon the same findings.

The plaintiff was the contractor and lien claimant. The defendants were the owners of the property when the work was done, the lien filed, and the action commenced. The interveners were the purchasers of the property

pendente lite.

The claim of lien was filed, as provided in section 1187 of the Code of Civil Procedure, in due time in the recorder’s office, the action to foreclose the same being commenced within ninety days thereafter, and the sole question presented on the appeal is, Does a party who in due time records a sufficient and valid mechanic’s lien, have to record a notice of

lis pendens

upon the foreclosure of that lien in order to charge and hold the property against purchasers

pendente lite?

■Section 1190 of the Code of Civil Procedure, specifying the time of continuance of a mechanic’s lien, in part then read: “No lien provided for in this chapter binds any building, mining claim, improvement, or structure for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to 'enforce the same.” By implication this provision plainly means that when proceedings to foreclose the lien are commenced within the time designated, the lien continues, rendering it unnecessary to file a notice of the pendency of the action.

The authorities sustain this view. In the case of

Empire Land & Canal Co.

v.

Engley,

18 Colo. 388, [33 Pac. 153, 155]—where the statute providing for the filing of a mechanic’s lien and its foreclosure is similar to ours (reading that the lien should not hold the property longer than six months after filing the claim unless an action to enforce the same be commenced within time)—it was held that a purchaser or encumbrancer of property upon which a mechanic’s lien has been filed is charged with notice thereof by virtue of the mechanic’s lien statute itself, without the filing of a notice of