Consolidated Lumber Co. v. Bastien

NOURSE, P. J.

The controversy presented on this appeal arises out of the trial of the consolidated actions brought to foreclose®several mechanics’ liens for labor and materials furnished in the construction of a dwelling-house and garage on the property of defendant Bastien. The appeal is taken on the judgment-roll by Thomas Haverty Company, Pacific Plaster Company and Blue Diamond Company, three of the lien claimants.

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The facts may be stated briefly. There was no general contract. On April 17, 192'6, a trust deed covering the property was filed for record. On the day previous Consolidated Lumber Company commenced the delivery of materials on the premises. Following April 17th the other lien claimants delivered the materials or performed the labor upon which their claims of lien were based. The trial court found that the claim of the Consolidated Lumber Company was prior to the lien of the trust deed and prior to the liens of all other claimants. It also found that these other liens were subsequent and subordinate to the lien of the trust deed.

The appeal rests entirely upon this finding of priority and involves an interpretation of section 1186 of the Code of Civil Procedure, which provides, in part, as follows: ‘ ‘ The liens provided for in this chapter are preferred to any lien, mortgage, or other encumbrance which may have attached subsequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished. ...” Appellants contend that a proper construction of this section requires a finding that their liens date back to the time when the building was commenced and that, as so construed, their liens should be held prior and superior to the lien of the trust deed and should be given equal force with the lien of the Consolidated Lumber Company. The point is not a new one. In

McClain

v. Hutton, 131 Cal. 132, 144 [61 Pac. 273, 63 Pac. 182, 622], the Supreme Court held that, where the general contract was invalid, the individual claims of liens attached as of the time when the work was done or the materials were commenced to be furnished under each claim and did not relate back to the time when work was commenced on the building. In