
    Common Pleas Court of Montgomery County.
    The Delskamp Paint & Glass Co. v. Leo A. Stotter, et al.
    Decided March 13, 1931.
    
      A. W. Schulman, for Edgemont Coal and Cement Co.
    
      Burkhart, Heald & Pickrel, and Sigler & Denlinger, for Miami Savings & Loan Co.
   Snediker, J.

This case is now before the court on the exceptions of the Edgemont Coal & Cement Company to the report and supplemental report of the special master commissioner.

The Edgemont Coal & Cement Company filed its answer and cross petition setting up a claim for $2,643.35 on account of materials sold and delivered to the defendant, Leo A. Stotter, and intended to be used by him in the construction of the property herein sold. This cross petitioner also asks that a lien which it filed to secure its claim be declared a valid and subsisting lien on that real estate, and that the premises may be ordered sold and the liens thereon marshalled, and that it be paid in the order of its priority.

After taking testimony, the master found the lien invalid because the description of the property contained therein was only of lot 30578, the other lot, 30579, being entirely omitted therefrom.

In order that we may proceed with an exact statement of the facts before us, it is well enough now to remember that the building upon which these materials were furnished was an entire building built on two lots, and the materials supplied were used on both. The lien reads:

“Furnished certain materials in and for the construction of a certain building situated on the land hereinafter described, in pursuance of a certain contract with Leo Stotter. * * * The Edgemont Coal & Cement Company claims a lien upon said building and land, of which Leo Stotter is the owner.”

And then follows a description of lot No. 30578 only.

The controversy with regard to the lien of the Edgemont Coal & Cement Company is made by the defendant the Miami Savings & Loan Company solely, which knew that the materials furnished by the Edgemont Coal & Cement Company were for the entire building upon both lots and so late as September 7, 1928, which was a time when some of the materials making up the account of the Edgemont Coal & Cement Company for the purposes of this lien had already been furnished, took from the Edgemont Coal & Cement Company its release of lien up to September 1st.

Section 8310 of the General Code reads in part:

“Every person who does work upon or furnishes machinery, material, and so forth, for constructing * * * * or erecting, altering, repairing, or removing a house * * * shall have a lien to secure the payment thereof upon such * * * house.”

Section 8314, General Code, in part reads:

“Every person, or his agent or attorney, whether contractor, subcontractor, materialman, or laborer, who wishes to avail himself of the provisions of this statute, shall make and file for record in the office of the recorder in-the county or counties in which said labor was performed or machinery, material, or fuel furnished, an affidavit showing * * * a description of the property to be charged with the lien.”

It may be said to be a general rule, dictated by common sense as well as recognized by the law, that it is not absolutely essential that the description of the property be perfect, if it is sufficient to permit the property to be readily identified. There can hardly be any question of identity raised by the Miami Savings & Loan Company under the conditions already recited. However, there have been some cases in which a like mistake was made by a lien claimant before some of the best courts of last resort in the country.

In Hurley, Appellant, v. Tucker et al, Respondents, 128 App. Div. Supreme Court, N. Y., there is the following statement of the rule to be applied in such event:

“The general rule respecting the sufficiency of description, as applied by the courts in this and other jurisdictions is that formulated in Phillips on Mechanic’s Liens as follows:
“‘Among those laid down, and probably the best rule to be adopted is, that if there appear enough in the- description to enable the party familiar with the locality to identify the premises intended to be described with reasnable certainty, to the exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanic’s claim merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers and it is not necessary that the description should be either full or precise. It is enough that the description points out and identifies the premises so that by applying it to the land it can be found and identified. A description that identifies is sufficient, though inaccurate. If the description identifies the property by reference to facts, that is, if it points clearly to a piece of property, and there is only one that will answer the description, it is sufficient.’ ”

The lien here under discussion was upon both “building and land.”

In the 94th California, at page 205, the Supreme Court of that state, in the case of Williamette Steam Mills Co. et al, Respondents, v. M. Kremer et al, Appellants, held:

“A description of lien of the property sought to be charged need not be full and precise but it is sufficient if it enables a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others. As a general rule, the sufficiency of the description is a question of fact to be determined by the trial court.”

In discussing the description in the case before it, court say:

“In an action to foreclose the lien it is, however, necessary that the property which the plaintiff seeks to subject to a sale therefor should be definitely described and that the judgment should specifically designate the property affected by the lien and directed to be sold. Otherwise, the officer executing the judgment can neither point out the property which he offers for sale, nor place the purchaser in possession thereof; and the deed which he may execute will not convey any title; and as the judgment must follow the complaint, it is essential that the complaint should itself contain such specific description. In the complaint of the Los Angeles Planing Mill Company it is alleged that the building is ‘upon that certain lot or parcel of land situate in the city and county of Los Angeles, state of California, at the northwest corner of Eighth and Hope streets.’ A conveyance in which that was the only description would be void for uncertainty. In the complaints of the other plaintiffs, the lot is described as ‘lot six 6) in block twenty-eight (28), of the Huber tract, in said city,’ one of said com'plaints stating that said lot is ‘situate at the corner of Hope and Eighth streets, in said city,’ and the other that it is at the northeast corner of said streets.
“The court, however, found that the building is upon the lot, in said city, ‘on the northeast corner of Eighth and Hope streets, said lot being more particularly described as lot 6, and the southerly ten feet of lot 7, block 28, of the Huber tract.’ .In its decree, it, however, directs that only that part of the building which is upon lot 6 shall be sold.
“In this respect the court erred. The statute gives a lien upon the entire building for any portion of the .labor done or materials furnished therefor, and there is no provision for a lien upon a portion of a building, or for the sale of a part of a building to satisfy a lien upon the whole. We have already seen that the claims of lien as filed were sufficient to embrace the entire building, and when it was shown that the building was upon more land than was described in the complaint, the court should have directed amendments to be made to the complaints, so that they might conform to the proofs, and should then have directed a sale of the entire building, and such land as it should determine to be required for the convenient use and occupation thereof.”

Here, again, it must be remembered that the lien secured to a materialman under Section 8310 of the General Code is “upon such house * * * and upon the interest, leasehold or otherwise, of the owner,” etc. And also, that in its cross petition the Edgemont Coal & Cement Company assert a lien upon both lots 30578 and 30579. If we have' respect only to the authorities we have already quoted, we can entertain no doubt as to the right of the Edgemont Coal & Cement Company to assert the lien which it claims in its answer and cross petition. But, this question being rather novel in the state, we proceed to take up another line of decisions and authorities bearing upon the question before us.

In the state of Illinois the provision of the mechanic’s lien law relating to this particular is, that the claim contain “a sufficiently correct description of the lot, lots, or tracts of land, to identify the same.” And in discussing that, Love, in his Illinois Mechanics’ Liens, says:

“It is best to have the claim identify the real property both by legal description and street address, as the incorrectness of the one will not vitiate the claim if the other description is sufficient. Whether a particular description is sufficient to identify the property has been considered in a number of cases. The general principles applicable are best set forth in Springer V. Kroeschell, 161 Ill., p. 358-368, where the court said:
“ ‘The description of the property in the statement of claim of lien is designed to be of value as notice both to the owner and to the purchasers * * * Only such descriptions as are calculated to mislead subsequent purchasers and creditors, or fail to locate the premises, invalidate the claim. A description is sufficient if there is enough in it to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty. It is not necessary that the description should be either full or precise; and, so far as purchasers are concerned, its office is to give them notice * * * Some of the textbooks and decisions require greater certainty in the description where the rights of third persons are to be affected by the lien than in cases where the contract is wholly between the materialman and the land owner.’
“In that case (the Springer case) the court upheld, even as against a purchaser, a description of the property as a brick building on ‘lots 10 and 11 in block 51,’ although it was conceded that the correct description was ‘lots 10 and 11 and the south 7-2/12 feet of lot 7 in block 51.’ In Sorg v. Pfalzgraf, the bill of complaint claimed a lien as to lots 9 and 10; the evidence showed that the house to which the lien related was on lots 8 and 9; the court therefore allowed a lien on lot 9 alone for .the full amount of the lien claim; in other words, the description of the property as lots 9 and 10 did not prevent the establishment of a lien as against lot 9; a description which was too broad did not defeat the lien.”

In the Pfalzgraf case, already referred to, the first syllabus reads:

“The owner will not be permitted to defeat a mechanic’s lien merely because the claimant might, but for an error in his claim for, lien, have obtained a lien upon a larger portion of the land of such owner.”

In the Granquist case, 420 Ill., 182, the syllabus, which met with the approval of the court, in the first paragraph is:

“Where a building contract fails to describe the lots on which the building is to be erected, and a claim for lien is filed against lots 1 and 2, but it is discovered, after the time for filing the claims has expired, that the building is not on lot 1 but is partly on lot 2 and partly on lot 3, it is not an error to decree a lien against lot 2 alone.”

In this decision the court quotes, and approves, 27 Cyc. at page 160, as follows:

“The validity of the claim (for mechanic’s lien) is not affected by the fact that it does not cover as much land as it might properly have covered.”

And the court then say:

“In support of the above proposition three cases are cited: Culmer v. Clift, 14 Utah, 266; Pacific Rolling Mill Co. v. Bear Valley Irrigation Co., 120 Cal., 94; and McCormick v. Phillips, 4 Dak., 506.”

So that whether we follow the view taken by the first line of authorities to which we have referred, or adopt the rule laid down by the last authorities, the Edgemont Coal & Cement Company is entitled to a lien. It only remains for us to determine as against what property it is our duty to regard it as asserted. Our opinion is that it is entitled to participate in the distribution of the entire fund realized from the sale of this property; first, because the- defendant association, answering the cross petition, has and had knowledge that it was furnishing material for the construction of the entire building; second, because the lien is upon the building as well as the land and the description is therefore sufficient; third, because proceedings to enforce a mechanic’s lien are in the nature of proceedings in chancery, and that law should be so administered and the court should so arrive at its decree.  