
    THOMAS C. BASSHOR ET AL. v. HALLET KILBOURN.
    Equity. —
    No. 4649.
    A married woman was seized of property against which a claim for a mechanic’s lien was filed, entitled against the husband in this form, "Thomas C. Basshor Sf Co. v. Mallet Kilbourn,” and recites that it is the intention of said company “ to hold a lien upon the property of Ilallet Kilbourn, being his dwelling-house situated at the intersection of K and Seventeenth streets, on lot — in square number 164, for the amount due,” &c.: Meld, That the description of the premises intended to be covered by the lien was not sufficient, aud that no lien existed by reason of such notice.
    STATEMENT 0E THE CASE.
    The bill ih this case is filed to enforce a claim for a mechanic's lien on lot 1 in a subdivision of part of square 164, in this city.
    
      The pleadings and proofs disclose the fact that Kate R. .Kilbourn, a ma'rried woman, and the wife of the co-defendant, 'Hallet Kilbourn, was seized of the properly in question at the time when the complainants placed in it the heating apparatus for which the lien is claimed. Previous incumbrances had been placed upon the property for the purpose of securing the payment of promissory notes amounting in the aggregate to the sum of $30,000, and the trustees are made parties defendants. It also appears that Mi’s. Kilbourn, in September, 1874, through her said husband as her agent, entered into a contract with the complainants to furnish a heating apparatus for their dwelling-house on the said premises for a consideration of $2,500, to be paid in cash, and that the complainants completed their part of the contract about the 25th of February, 1875; that there has been paid complainants about $500, leaving a balance still due of $1,992.31, It was to secure this amount that they claim a lien against the dwelling-house and ground on which it stands.
    The notice of claim for the lien, as far as it is necessary to be stated, is as follows: “ Thomas C. Basshor & Co. v. Hallet Kilbourn,” and recites that it is the intention of said company “to hold a lien upon the property of Hallet Kilbourn, being his dwelling-house situated at the intersection of K and Seventeenth streets, on lot — in square number 164, for the amount due,” &e., &e., and is dated at the foot April 21, 1875.
    The defendants Kilbourn and wife deny that the heating apparatus constitutes a part of the dwelling-house, or that it is an engine or machinei’y within the meaning of the statute. They also contend that the notice óf an intention to hold a lien is insufficient.
    The law relating to liens of mechanics and material-men provides that “ any person who, by virtue of any contract with the owner of .any building, or with the agent of such owner, performs any work upon or furnishes auy materials, engine, or machinery for the construction or repair of such building, shall, upon filing the notice prescribed in the following section, have a lien upon such building and the lot of ground upon which the same is situated,” &c., &o. (R. S., 83.)
    The statute further provides that “ any person wishing to avail himself of the provisions of this chapter * * * shall
    file in the office of the clerk of the Supreme Court of the District, at auy time after the commencement of the building, and within three months after the completion of such building or repairs, a notice of his intention to hold a lien upon the property declared by this chapter liable to such lien."
    
    An agreed statement of facts was made and filed in the case supplemental to the pleadings, which contains the following matters and things:
    “ Said apparatus is constructed of iron and was manufactured by the complainants iu Baltimore. As it stands now, aud as it stood when the suit was brought, it rests flat upon the concrete floor of the cellar of the house, and is bricked up on three sides, the bricks resting upon the concrete floor of the cellar, and at the rear the bricks run up along and against the stone foundation wall of the cellar. The heating apparatus, as bricked up, is about six and a half or seven feet high, about six feet wide, and about seven feet from front to rear, and it reaches to within about three feet of the ceiling of the cellar. The house when built was provided with flues or conduits for the purpose of conducting and distributing heat through the house, and iron pipes run from the heater to connect with these flues or conduits. These pipes are about three inches in diameter, and run under and near the basement ceiling upon supports fastened with nails to the joists, and convey steam to the radiators which are fastened to the joists and which are inclosed in wooden boxes connected with wooden troughs, through which the air is brought from outside, the boxes themselves being also fastened with nails to-the floor joists. The heat being abstracted from the steam by the cold air, the steam is condensed into water and flows back through the iron return pipes connected with the radiator to the boiler1.
    “ This heating apparatus and pipes can be removed readily without injury to the building, and maybe replaced by any other kind of heating apparatus with appropriate pipe.”
    It was agreed that the heating apparatus was put in after the house had been fully completed and was occupied by the defendant Kilbourn; and further, that, the notice of the claim for lieu was tiled within three months after the work of putting in the apparatus had been completed.
    The cause was heard at the special term upon the pleadings, exhibits, and on the agreed statement of facts, and a decree was passed directing a sale of the premises. From this decree an appeal is taken.
    
      Walter S. Cox, for complainants.
    Our act on the subject of mechanics’ liens requires the party claiming a lien simply to file a notice of his intention to hold a lien on the property made liable by the law. It is admitted that the work was done in the dwelling-house occupied by the defendants at. the intersection of K and Seventeenth streets, in square 164, and our notice refers to that property, and by law this property is made liable to the lién, and the law detines the extent of the lien. The notice, therefore, is sufficient to meet the requirements of the law.
    Our act does not require the name of the owner to be given. It is, therefore, immaterial that our notice calls it the property of Hallet Kilbourn instead of his wife.
    Nor is auy accuracy in the description of the property necessary beyond what is necessary to identify it. For examples of descriptions which have been held sufficient, see Phillips on Liens, pp. 518-522, 529, and cases cited.
    That the work was the proper subject of lien there can be no doubt.
    The house was prepared in advance for this furnace. Some furnace was necessary for its convenient use, and this was embraced in the specifications of the complete house. It was a necessary part of the house, and belonged to its construction. It was solidly built up in and attached to the house. It can make no difference that it could be removed without injury to the house. The house would require something in its place. The same might be said of mantles, doors, and other fixtures.
    For examples of work which has been held the proper subject of lien, see Phillips on Liens, pp. 224, 228, 230, and cases cited.
    
      Enoch Totten, for defendant.
    To bring themselves within the provisions of the statute, the plaintiffs must show that they either performed work upon or furnished “ materials, engine, or machinery for the construction or repair of the building.” It will hardly be contended that this heating apparatus is included in the terms “materials” or “engines.” Is it embraced within the fair and reasonable import of the word machinery? Worcester defines the word machinery thus: “An artificial work which serves to apply or regulate moving power or to produce motion;” and the word machinery thus: “Mechanical combinations of parts for creating or for applying power in engines or machinery.” The apparatus in question cannot be called machinery with any more propriety than can an ordinary stove. The lien law is a species of special legislation and against the policy of the public, and therefore will be strictly construed. All statutes of this character are odious, and confer unfair privileges and immunities on particular classes of creditors. There is no better reason for giving a material-man or mechanic a special lieu for his property or labor put into the debtor’s house, than exists for giviug special protection to the grocer, tailor, or dry-goods merchant whose goods have been used for the subsistence or comfort of the debtor’s family. One of the ablest jurists in this country uses the following strong language in reference to this kind of special legislation: “ It is a species of class- legislation in favor of landlords, granting them rights not given to other creditors generally. It follows that in availing himself of this special and extraordinary remedy, the landlord must take it just as the statute gives it to him.” (Merrit v. Fisher, 19 Iowa, 354,) And the Court of Appeals of New York has announced substantially the same doctrine in a case where the lienor had failed to file an affidavit showing the institution of a suit for his materials within thirty days, as required by the statute. The court held that by this omission the lien was lost, and says: “ The lien clai med by the plaintiffs is the creature of the statute, and depends solely for its validity upon the act creating it. The act is an innovation upon the common law, affecting property and rights of property. Authorizing as it does property to be incumbered without or against the consent of the owner, and without a resort to legal process or judicial action, such an act cannot be extended in its operation and effect beyond the fair and reasonable import of the words used, and the plaintiffs asserting the lien must bi’ing themselves within its terms.” (Mushlitt v. Silverman, 50 N. Y., 362; Esterly's Appeal, 54 Penn., 192.)
    The bill avers that the furnace was “included in the specifications for the building” of the house. There is enough in. the case to show that the house was new and but recently completed; it seems plain, therefore, that the furnace was not furnished “for repair” of the building. In order to entitle themselves to the benefits of the extraordinary remedy provided by the statute, the plaintiffs must show that their materials or appliances were furnished for either the construction or repair of the building. It is an admitted fact that in this case .the house was fully completed and also occupied when the plaintiffs furnished their heater. It must from this fact follow' that it was not furnished for the construction of the building, because how could anything be furnished for the construction of a building which was already fully completed ? How could materials or machinery enter into the construction or form a part of a building already constructed?
    The furnace is not a fixture. It no more forms a part of the building than does any ordinary stove with its funnel. Under a statute giving a lien for materials used for “ erecting, altering, or repairing a building,” it was held that a stove with its funnel was not comprehended within the law. (Lom
      
      bard v. Pike, 3 Redington, Me., 141.) The heater in this case is no more than one large stove substituted and used in lieu of many smaller stoves. It is also an admitted fact, which greatly strengthens this view of the case, that the “heating apparatus and pipes can be removed readily without injury to the building, and may be replaced by any other kind of heating apparatus.” It can be used in any other place with equal facility, and is not necessary or essential to the building, nor for its use as a dwelling-house. It therefore foi’ms no part of the realty. The decided cases relating todhe subject of “fixtures” are very conflicting, but I think the weight of authority is in favor of the doctrine as above stated. (See 2 Kent, 420 [343]; Amos on Fixtures, ch. 2, secs. 3, 4; Gale v. Ward, 14 Mass., 352; Cresson v. Stout, 17 John., 116; 28 Vt., 428; 1 Ohio, 511.)
   Mr. Justice Humphreys

delivered the opinion of the court:

Under the statutes applicable to this District, complainants filed a bill to enforce a mechanic’s lieu.

Do the facts bring the cáse within the operation of the provisions of the statute as to liens ?

Notice was given that a lien would be asserted for introducing into the basement of the house, which was the property of Mrs. Kilbourn, what is termed a heater. No specified lot or house was mentioned. It was only oil K street.

We are unanimous that the description of the premises intended to be laid upon and covered by an asserted lien was not sufficient to give complainants the right of controlling a sale of the entire property; in fact, that no lien existed by reason of the statutory notice.

Some members of the court are of opinion that the nature of the complainant’s claim is not such as will entitle him under the statute to attach the property.

But the first point is decisive of the question.

The decree is reversed and the bill dismissed.  