Mills v. La Verne Land Co.

McFarland, J. This action was brought to enforce an asserted lien under the mechanic’s lien law. The court below sustained a general demurrer to the complaint, and judgment was rendered for defendants. Plaintiff appeals.

The averments of the complaint are (in brief), that the La Verne company, defendant, was indebted to Meek & Benton in the sum of seven hundred dollars for labor and materials furnished by them for and in the construction of a building on land of said company; that said Meek & Benton, by a written instrument, assigned the indebtedness to plaintiff, and also assigned, if the thing could be done, all their “ right of lien ” against said building and land; and that afterwards, and within the statutory time, plaintiff, as assignee, formally filed in the recorder’s office a notice of claim of lien against said property for the money due said Meek [255]& Benton for the said labor and materials which they had furnished as aforesaid. And we think that the demurrer was properly sustained.

The question presented is, not whether a lien for work or materials can be assigned, or would pass under an assignment of the debt secured, but whether a laborer or material-man can assign his mere right to assert and create a lien by complying with statutory provisions, and clothe the assignee with the power to create the lien for himself; and we are satisfied that he cannot. This question has never been heretofore determined in this state. In Patent Brick Co. v. Moore, 75 Cal. 205, referred to by appellant, the only question involved was, whether, in an action brought by the assignee of “ a lien,” there should be an averment that the assignment was in writing. The case in our reports which comes the nearest to touching the principle involved is Godeffroy v. Caldwell, 2 Cal. 489, 56 Am. Dec. 360, where it was held that “ one who advances money as a loan, although it is expressly for the payment of materials and labor devoted to the erection of a building, can have no claim to the benefit of the [mechanic’s lien] law.”

The decisions on the point in other states are, no doubt, somewhat conflicting, although the conflict may be explained, to some extent, by the different provisions of various statutes, some showing more clearly than others that only a personal right was intended to be conferred. But the weight of authority is clearly to the point that the said right cannot be assigned.

In Rollin v. Cross, 45 N. Y. 771, the court said: “The lien under statutes of this character is, in general, a personal right given to the mechanic, material-man, and laborer for his own protection, and the right to create it cannot be assigned or transferred to another. The statute under which the plaintiff claims does not authorize a lien to be filed by the assignee of a debt for work performed under a building contract.” In Fitzgerald v. Trustees, 1 Mich. 243, the court holds that “ the lien is personal to the contractor or subcontractor, and is assignable.” In