
    The United Banking & Trust Co. v. Russell et al.
    (Decided February 23, 1931.)
    
      
      Messrs. Stanley, Horwits & Kiefer and Mr. Harry E. Smoyer, for plaintiff.
    
      Messrs. Thompson, Hiñe & Flory and Mr. H. Walter Stewart, for defendants.
   Hornbeck, J.

This case comes into this court on appeal; the trial court having found that a judgment on behalf of plaintiff against defendant Joseph G. Russell was a valid and subsisting lien against certain real estate in the name of said Russell, upon which the defendant cross-petitioner, the Basom-McBain Company, claimed a mechanic’s lien.

There is no attack upon the validity of the judgment lien of plaintiff, the United Banking & Trust Company. The only question, therefore, for determination is whether or not the defendant the Basom-McBain Company has a valid lien upon a parcel of land having a frontage of eight feet on Fairmount boulevard and immediately adjoining sublot 550 on the north, being the southerly part of sublot No. 549. The residence which defendant Russell occupied was wholly upon lot No. 550, although formerly part of lot 551, and the eight feet frontage of lot 549 was also used as grounds appurtenant to the residence.

Lot 550 at all times pertinent to the issue in this case stood upon the real estate records of Cuyahoga county in the name of the 325 Superior Avenue Company. The eight feet adjoining lot 550, at all times pertinent to the issue in this case, stood in the name of defendant Joseph G. Russell. A portion of lot 551, off the south part thereof, was by entry released from any liability under the judgment claim of plaintiff or the claimed mechanic’s lien of defendant cross-petitioner, after the institution of this suit.

The question for our determination is whether or not the land, part of lot No. 549 heretofore described, which is in the name of J. G-. Bussell, is included in the mechanic’s lien of defendant cross-petitioner. If so, the lien attaching as of the date of the first work begun by the Basom-McBain Company, namely, September 27, 1928, would have precedence over the judgment of plaintiff.

It is the claim of the Basom-McBain Company that, inasmuch as the eight feet of land under consideration was a part of the lot adjacent to the residence in which Bussell lived, considered by him to be one tract, and so used, and inasmuch as Bussell owned and controlled all the stock of the- 325 Superior Avenue Corporation, and the corporation did not function, but was a creature of Bussell for his convenience only, the lien attached to the eight feet off of lot 549 as well as to lot 550.

We do not believe that defendant cross-petitioner can maintain its claim.

The Mechanic’s Lien Act, being in derogation of common law, must be strictly construed. It is the purpose of the act to give only a person who does work or labor upon, or furnishes material, etc., for constructing or improving a building, a lien only against the interest of the owner in the lot upon which the building stands. A corporation is a separate entity, and its existence cannot be challenged by a collateral attack such as this proceeding. The cross-petitioner in this case, having elected to assert its lien against the corporation, and being assured of such protection thereby, cannot deny the existence of the corporation and assert a further lien against the property which at no time stood in the name of the corporation.

For many years the corporation was existent, and it performed certain acts which appear in the record, and the mere fact that Russell now seeks to deny that it ever had any existence would not be sufficient to overcome the record in that respect.

The ownership of the eight feet and that portion of lot 550 which stands upon the duplicate in the name of the company rested in separate and distinct entities.

Section 8316, General Code, in our judgment is not helpful to the cross-petitioner’s claim, because it does not in any wise change the general purpose of the law to grant a lien to the claimant against the interest of the owner of the land, and does not extend the protection of the law to the interest of any person other than the owner.

We therefore are unanimously of opinion that the defendant cross-petitioner under the circumstances of this case can only have a lien against the owner of lot 550, upon which the residence in which the interior decorating was done is located, and that the lien does not extend to the eight feet off of lot 549 adjacent to lot 550.

The finding and decree will therefore be made accordingly.

Decree accordingly.

Kunkle and Farr, JJ., concur.

Judges Hornbeck and Kunkle, of the Second Appellate District, and Judge Farr of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.  