Bender v. Palmer

WALLACE, J. — The plaintiff, a materialman, furnished to Calderwood certain materials intended to be and in fact subsequently used by the latter in the erection of a building upon a town lot in Santa Cruz, of which he was at the time in possession, claiming to be the owner.

This action is brought to foreclose the lien asserted by the plaintiff under the statute of April 26, 1862, in relation to liens of mechanics and others. After the materials had been furnished, and while the building was being erected, or, it may have been, after its actual completion, Calderwood sold the premises to Dreman, who subsequently conveyed them to the defendant Maria.

The court below entered a decree directing a sale of the premises to satisfy the lien, and from this decree the defendant appeals.

That Bender furnished the materials and filed his sworn statement, correctly setting forth his claim, is not questioned here, but the point is made that his lien became lost, because, as is said, this filing was not done within thirty days after the [602]completion of the building — but was done before the building was completed at all.

It is-argued that the fact of completion -must have occurred before the right to file the claim accrues, and that the filing must be within thirty days after the event and not before the thirty days commence to run, nor after they have expired.

It is clear that if a building be completed, the claim for a lien cannot be filed after the lapse of thirty days from that completion, but we do not see, under the provisions of the statute, why a laborer may not, when his work is fully done, or a lumber merchant, when his materials are completely furnished, make and file his claim for a lien, even though, at that particular time, the building itself may not have áttained completion. Why should he wait upon the others, when his own part is completed? lie has done everything which entitles him to obtain his lien and to hold it for his own protection. And besides, if the fact of the actual completion of the building is an indispensable condition precedent to the laborer or materialman obtaining his lien, he may be delayed indefinitely at the mere caprice of others over whom he has no control— the owner of the improvement, for instance, • who may not choose that it'shall be completed at all.

But it is said that the construction which allows the materialman to place a lien on the premises before the building is completed must unavoidably lead to the result that he may also bring his action to enforce that lien before the completion.