Mars v. McKay

Cope, J. delivered the opinion of the Court—Baldwin, J. concurring.

This suit was brought to enforce a lien for building material against certain property in the town of Petaluma. The Court rendered an interlocutory decree establishing the lien, and thereupon caused the notice required by the statute to be published, notifying all persons holding or claiming liens on the property to appear in Court on the 4th day of May, 1858, to exhibit the proof of their liens. On the 1st day of March, 1858, the intervenors filed a statement of their demand and lien, and on the 29th day of October, 1858, the Court rendered a final decree [128]allowing such demand and lien, and ordering a sale of the property. A motion was made for a new trial, which motion was overruled as to the plaintiff; but the Court so modified the decree, as to the intervenors, as to reject their lion, leaving them only a personal judgment against the defendants. From the order modifying the decree the intervenors appeal to this Court.

The intervenors filed an account of their demand, made out and verified as required by the statute, and containing- a description of the property, and a notice of their intention to claim a lien, on the 4th day of September, 1857, which account was recorded on the 13th of October, 1857, and was then taken from the office of the Recorder. The demand was due at the time of filing, and the only action taken to enforce the lien within the period of six months thereafter, was in this case. The statement of the intervenors, setting up their demand and lien in this suit, was filed within that time. But two points are made in support of the order modifying the decree: 1. That the account, as originally made out, should have remained on file, and that its removal destroyed the lien. 2. That no suit was brought to enforce the lien within six months after it was filed.

In relation to the first point, the statute requires the holder of a lien to file in the office of the County Recorder of the county in which the property is situated, a just and true account of the demand due him, and a correct description of the property to be charged with the lien, and makes it the duty of the Recorder to record the account so filed in a book provided for the purpose. We do not infer from this that the account itself is to remain on file. The object of the statute is to give notice to the public of the existence of the lien, and this is as well accomplished by the record alone as by both record and account. As this object is not defeated, or in any manner affected, by the removal of the account after it has been recorded, to hold that such removal destroys the lien would be a harsh and illiberal construction of the statute. The fact that the filing of the account is a prerequisite to the bringing of a suit to enforce the lien, does not militate against this view.