though by custom he is called by a name other than "plaintiff." The judgment of the district court is therefore affirmed.

ment. There was no controversy raised in the action as to the furnishing of said building materials by plaintiff, or the use thereof by defendants in the erection of said

concur.

BONNER v. MINNIER et al. (Supreme Court of Montana. Sept. 5, 1893.) MECHANIC'S LIEN-WHAT CONSTITUTES-LIABILITY OF HOMESTEAD.

A lien for materials furnished is a "mechanic's lien," within the meaning of Code Civil Proc. 323, providing that such a lien shall not be affected by the provisions for homestead exemptions. De Witt, J., dissenting.

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Action by E. L. Bonner against Michael Minnier and others. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Reversed. Statement of the case by HARWOOD, J.: This action was brought to obtain judgment, and foreclose a lien to enforce payment, for materials furnished and used in the construction of a certain house in the village of Champion, Deer Lodge county. It appears that said house was built upon a piece of land theretofore vacant, being part of a quartz lode mining claim, purchased by defendant Minnier from one Baudet, which purchase was originally evidenced by a bill of sale executed by Baudet to Minnier. But it appears to be conceded that the money used in said purchase belonged to defendant Mrs. Minnier; that, while the title to the property stood in that condition, the defendant Minnier, with the knowledge and approval of his wife, commenced the erection of a house on said land, and purchased from plaintiff, and used in said structure, certain lumber and other materials; that, to secure payment for said building material, plaintiff filed his account thereof, and notice of lien on said property, as provided by law; that, some time after the commencement of the construction of said house, a formal conveyance of said premises was made by said original owner, Baudet, and defendant Minnier, to his wife, Mrs. Minnier. Said house appears to have been constructed and arranged so as to be used for residence purposes, or as a place of business, or for both such purposes; that, as soon as the house was sufficiently constructed to admit of habitation, defendant and his wife moved therein, and occupied the same continuously as their home, and Mrs. Minnier also fitted up and operated a barber's shop in one room of said house; that defendants own no other real property as a homestead or otherwise; that defendants failed to pay for said building materials, wherefore this action was brought to foreclose said lien, and subject said premises to sale to enforce such pay

alleged. The only defense set up was that defendants claimed said premises as their homestead, and that the same, being a homestead, was not subject to a lien for said building materials so purchased and used in the improvement thereof. There was some controversy in the case as to whether said premises constituted the home of defendants at the time said materials were furnished and used in the improvement thereof; but the trial court sustained the contention of defendants that said premises constituted their homestead, and the court further held that the statutes of this state exempt home steads from the charge of a lien for building materials procured and used in the erection of improvements thereon, and judgment was rendered accordingly, from which judgment, and an order overruling plaintiff's motion for a new trial, this appeal was prosecuted.

Brantley & Scharnikow, for appellant. W. H. Trippet, for respondents.

HARWOOD, J., (after stating the facts.) We think, under the facts shown in this case, the premises in question were properly held to constitute defendants' homestead. The important question of law involved in this appeal is whether a homestead is exempt from foreclosure and sale to satisfy a lien created by law in favor of one who furnishes materials purchased and used by the owners of such homestead in the improvement thereof. It is not disputed that by the provisions of chapter 82, p. 1028, of the Compiled Statutes of this state, a lien is expressly created in favor of parties furnishing materials contracted for and used by the owners of land in making improvements thereon, without any exception in favor of homestead premises. But it is contended by respondents that, notwithstanding the provisions of that statute, the statute providing exemption of homesteads and other property from forced sale on execution (sections 321-330, Code Civil Proc.,) withholds the homestead from the operation of such lien if it accrued for material alone, furnished and used in the improvement of the homestead. To maintain this proposition, respondents rely on a strict and very narrow interpretation and application of the clause of section 323, Code Civil Proc., which provides that "such exemption shall not affect any laborer's or mechanic's lien, or extend to any mortgage thereon lawfully obtained." It is argued that this provision is not broad enough to include the lien de clared by statute in favor of one who simply furnishes materials used in the improvement of a homestead; and that, consequent

ly, the plaintiff, who furnished material only, which was procured and used by defendants in the improvement of their homestead, is barred of relief, by way of enforcement of said lien. In the case of Merrigan v. English, 9 Mont. 126, 22 Pac. Rep. 454, the court refused to so construe and apply the provisions of the exemption statute just cited as to deny the enforcement of a lien on a homestead for material furnishednamely, a mantel-in favor of the mechanic who furnished the same, as well as the labor involved in setting said mantel in the building. The only real difference between that case and the one at bar appears to be that, in the former case, the lien claimant occupied the position of furnisher of material, as well as labor, on the premises, in shaping the material so furnished into the building; whereas, in the case at bar, the Hien claimant furnished and delivered material, without any labor towards the erection of the building on the premises. If the view urged by respondents is adopted, the effect of such holding would appear to be that one who manufactured, hauled, and delivered the brick, or quarried, cut, hauled and delivered the stone, or went into the forest, cut, manufactured, transported, and delivered the lumber contracted for, and used in the erection of improvements on a homestead, would be denied enforcement of the lien which the law declares he shall have to secure payment for such materials, because he would be simply the furnisher of material for the structure, like the plaintiff, and would, according to such construction and application of the exemption statute, not be included within the meaning and intent of the legislature in declaring that such exemptions shall not affect the liens of laborers and mechanics. We do not think such a view gives effect to the intent of the legislature, as manifest in these statutes. Even without any further expression of the legislative intent on this point than the clause of section 323 above referred to, we could not adopt the view urged by respondents as giving effect to the intent of the law. We are satisfied that, in providing that such exemptions shall not affect any laborers' or mechanics' liens, the legislature referred to the liens for material and labor provided for by the statutes of this state commonly mentioned as the "Mechanic's Lien Law." Such improvements, in fact, comprise labor bestowed upon material, both on and off the premises where the improvement is placed. Payment for the material is payment for the labor expended upon it through all the changes it has undergone, from its natural raw state, until placed in the structure.

But if, in looking at section 323 of the exemption statute alone, there is room to raise doubts as to the intent of the legislature, and room for contention that a homestead claimant may obtain material for improve

ment on his homestead, and enjoy the same without payment, in case no property can be found over and above the exemption, there is still another provision in the same statute which seems to give further light as to the intention of the legislature on the point under consideration, namely, a provision of section 328, wherein it is declared "that this act shall not be construed as to in any manner relate to judgments or decrees renderd on the foreclosure of mortgages, either equitable or legal." The lien under consideration is a specific incumbrance, existing through a positive enactment of the legislature, operating upon certain facts, and the lienor would seem to be entitled to his judgment of foreclosure, on showing the facts and a compliance with the statute, the same as a party, on making out his case, is entitled to judgment for debt, although the debtor may not have property subject to an ordinary execution. Now, when it comes to the execution of these judgments, it is found that the legislature has made a distinction between them in the statute relating to exemptions, declaring, in effect, that such exemptions shall not be construed to affect judgments or decrees of foreclosure of specific incumbrances. If this is not the plain intendment of the provisions of the exemption statute last above quoted, we think it would be difficult to conceive or reasonably explain the intent those provisions manifest. The rules of construction that several provisions of statutes relating to the same subject shall be considered and construed toegther, so that all the provisions shall be given reasonable force and effect, if possible, (section 631, Code Civil Proc.,) and that, "when a statute is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted," (section 638, Id.,) both, we think, demand such a construction of the statutes in question as will give force and effect to appellant's lien. Respondents cite, in support of their position, Richards v. Shear, 70 Cal. 187, 11 Pac. Rep. 607, wherein the court held that the homestead was not subject to sale in satisfaction of a lien for material alone, furnished in the improvement thereof. While there is some likeness, but not entire similarity, in the provisions of the California statute and the clause of section 323 of our Code above quoted, it does not appear that the California court was aided by such a general proviso as we have in section 328 to show the intendment of the legislature. It has been shown that the exemption statute of Montana was not taken from California, in Lindley v. Davis, 7 Mont. 207, 14 Pac. Rep. 717, and Merrigan v. English, supra; and considering the difference of form, as well as additional provisions we have to construe and apply, it would seem to be an abdication of reason to follow the holding in the California case just cited. It should be further ob

served that in a recent case the supreme court of Nebraska placed a construction entirely opposed to that of California on statutory provisions entirely similar. Windmill Co. v. Shay, 48 N. W. Rep. 896. The holding in the case of Duncan v. Batemen, 79 Amer. Dec. 109, cited by respondents, is based upon different statutory provisions than those prevailing in Montana. It was there held that the statute of Arkansas did not create a lien in favor of one who simply furnished material. Such might be the case. The lien depends on the statute for existence. But here it is not disputed that the statute imposes the lien in favor of appellant; and we think, without doubt, the legislature intended the homestead should be subject to a lien, and to foreclosure and sale thereunder for material obtained and used by the owners of the homestead in the improvement thereof. Judgment is therefore reversed, and the cause remanded for proceedings in conformity with the views herein expressed.

PEMBERTON, C. J., concurs.

DE WITT, J., (dissenting.) This action is brought to foreclose a lien for materials furnished for a building of defendants. The case was tried by the court without a jury. Defendants are husband and wife. The court gave a money judgment against Minnier, but denied the lien. Plaintiff appeals. The defense against the lien was that the premises were a homestead, and, as such, "not subject to forced sale on execution or any other final process from a court," (section 322, Code Civil Proc.,) and that a material man did not come within section 323, Id., which provides that "such exemption [homestead] shall not affect any laborer's or me chanic's lien," etc. I will examine these two propositions. Our homestead law is as follows: "A homestead consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, city, or village; or, instead thereof, at the option of the owner, a quantity of land not exceeding in amount one-fourth of an acre, being within a town plot, city or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of this territory, shall not be subject to forced sale on execution, or any other final process from a court: provided, such homestead shall not exceed in value the sum of two thousand five hundred dollars." tion 322, Id. Under the law of this state, there is no provision, as there is in many states, for filing or recording a declaration of homestead. Ownership and occupation by a resident of the state give the right of homestead. The language of the statute is "owned and occupied;" and, even without the word "occupied" in the statute, the word

Sec

"homestead" itself embodies the idea of occupation. Thomp. Homest. & Ex. § 100 et seq. It is accordingly held in many decisions that, to constitute a homestead, there must be occupation. Kurz v. Brusch, 13 Iowa, 371; Moore v. Granger, 30 Ark. 574; Chipman v. McKinney, 41 Tex. 76; Avery v. Stephens, 48 Mich. 246, 12 N. W. Rep. 211; Elston v. Robinson, 23 Iowa, 210; Christy v. Dyer, 14 Iowa, 440; Blum v. Carter, 63 Ala. 235; Charless v. Lamberson, 1 Iowa, 435; Bowker v. Collins, 4 Neb. 494; Drucker v. Rosenstein, 19 Fla. 191, and cases cited on page 195; Thomp. Homest & Ex. § 241; Pryor v. Stone, 70 Amer. Dec. 347, note. Again, if a lien becomes fixed upon premises before they become a homestead, it is held in the decision that the creation of a homestead does not divest the lien. Tuttle v. Howe, 14 Minn. 147, (Gil. 113;) Cogel v. Mickow, 11 Minn. 478, (Gil. 354;) Potshuisky v. Krempkan, 26 Tex. 309; Pope v. Graham, 44 Tex. 198; Thomp. Homest. & Ex. § 317, and cases cited; 9 Amer. & Eng. Enc. Law, p. 465; McComb v. Thompson, 42 Ohio St. 139; Thompson v. Pickel, 20 Iowa, 490; McCormick v. Wilcox, 25 Ill. 274; Estate of McCauley, 50 Cal. 544; Elston v. Robinson, 21 Iowa, 534; Furman v. Dewell, 35 Iowa, 170; Cowgell v. Warrington, 66 Iowa, 666, 24 N. W. Rep. 266; Gunn v. Miller, 43 Ga. 377; D'Ile Roupe v. Carradine, 20 La. Ann. 244; Gunn v. Barry, 15 Wall. 611. See, also, cases cited in last paragraph. Many of the above cases are cited in Thompson on Homesteads, (section 317,) and sustain the text of that author. It is therefore often important to determine when the lien accrued, and when the occupation of the premises as a homestead commenced. In this case the material was furnished between February 20 and April 28, 1890. The lien for this material, if any exists, dates from the furnishing of the material, and not from the filing of the lien. Merrigan v. English, 9 Mont. 113, 22 Pac. Rep. 454.

The facts in the case at bar are as follows: The building was being erected during the time that this material was furnished. The material so furnished was lumber, molding, lime, glass, windows, doors, etc. The lower part of the house was of logs, a class of material not included in that furnished by plaintiff. It does not appear just when the building was commenced. Some of the witnesses testified that defendant Minnier and wife lived on the other side of the street while the building was being erected. One witness says: "I know this house in controversy, and am acquainted with Mr. Minnier and Mrs. Minnier. I remember when the house was built. They made their home right in the house, and until it was finished. After they had the house commenced, they built a kind of a little house of boards, temporarily, on the back part of the lot, until they could move into the house." All agree that as soon as the house was habitable the defendants

moved in. The court found that the premises were the homestead of defendants. That finding is supported, and the homestead is constituted, if there be evidence that defendants occupied the premises as a homestead when the alleged lien accrued. I think that there was such evidence. A portion of the building was of logs. These would naturally be used before the class of material furnished by plaintiff. There was evidence that defendants built a small temporary house on the ground after they commenced the building, and that they lived in that temporary structure. It is not contrary to the evidence that defendants were living on the premises in this temporary structure after they commenced the building, after the log work had been done, and wher the plaintiff's material was being supplied This case bears some resemblance to that of Reske v. Reske, 51 Mich. 541, 16 N. W. Rep. 895, decided by Mr. Justice Cooley. The closing language of that opinion is so much in point that I give it entire: "The question now is whether, on the facts recited, the lot had become a 'homestead' in a legal sense before the levy was made upon it. We are of opinion it had. The lot, as has been said, was procured for the purposes of a home, and complainant, aided by the industry and frugality of his wife, was proceeding to make it such as rapidly as their limited means would permit. They inclosed it; they had their domestic animals upon it; they came to live in the immediate vicinity; they made a well; and they put up outbuildings. Everything but the dwelling proper had been erected before the levy was made, and the complainant was bargaining with a builder for a house. If anything was lacking to make the lot a homestead, it was because the poverty of complainant had precluded his advancing his improvements as rapidly as he desired. The lot, however, in the minds and hearts of complainant and his wife, had been appropriated as a home from before the day of their marriage; it was all the home they had; it represented all their scanty means, and was the center of their domestic hopes and aspirations. They did not as yet sleep upon it or take their meals upon it; and probably, if they had done this in some of the buildings already constructed, their right to claim a homestead would not have been disputed. But this is not an indispensable condition. The man who buys a home which is all ready for occupancy cannot have it taken from him, as he is attempting to move in his goods, because he has not yet eaten or slept within it. Any one might be deprived of a homestead if so narrow a construction of the privilege should prevail. It is people like this complainant and his wife, with very limited means, that the law encourages with its promise to save their home to them if they will but secure one; and it would be a deceptive promise if it were only made on conditions which any creditor might so easily v.34P.no.1-3

defeat. We think it was meant to be effective in cases like the present, and that complainant is entitled to the relief he prays." So, in the case at bar, the defendants had no other property whatever. They had their all. in this house. The house was situate in the town of Champion, Deer Lodge county. The husband occasionally went to Butte for a few weeks to get work. The wife stayed at home in Champion, and worked as a barber. It was in the latter part of the winter that they were building this house, and in this season of the year, which is likely to be inclement, they put up a temporary board house, in which they lived. They went into the building on which the lien is filed the moment that it was habitable. However far the decided cases go in holding that occupation is necessary to constitute a homestead, the law must be reasonable as to what occupation is. The Iowa supreme court says in Neal v. Coe, 35 Iowa, 407, cited in Drucker v. Rosenstein, 19 Fla. 196, and also in many other decisions and by text writers, as follows: "While intention is not alone sufficient to impress the homestead character, yet it may be considered in connection with the circumstances. Some time usually intervenes after the purchase of property before it can be actually occupied. Even after the process of moving, it frequently takes days before the furniture can be arranged, and the house placed in comfortable condition for actual occupancy. Under such circumstances great inconvenience might arise if the homestead character was made to depend upon the actual personal presence of the members of the family. Law is entitled to and can command respect only when it is reasonable, and adapted to the ordinary conduct of human affairs." The supreme court of Alabama, in Blum v. Carter, 63 Ala. 240, after reviewing many of the cases which I have cited above, says: "Guided by these principles, we hold that, to constitute a valid claim of homestead, there must be an occupancy in fact, or a clearly-defined intention of present residence and actual occupation, delayed only by the time necessary to effect removal or to complete needed repairs or a dwelling house in process of construction. An undefined, floating intention to build or occupy at some future. time is not enough. And this intention must not be a secret, uncommunicated purpose. It must be shown by acts of preparation of visible character, or by something equivalent to this. Daniel v. Collins, 57 Ala. 625; Boyle v. Shulman, 59 Ala. 566; Preiss v. Campbell, Id. 635; Chambers v. McPhaul, 55 Ala. 367." See, also, the matter discussed in many of the cases above cited, and also in Williams v. Dorris, 31 Ark. 466; Solary v. Hewlett, 18 Fla. 756; Barnes v. White, 53 Tex. 628; Grosholz v. Newnan, 21 Wall. 481; Fogg v. Fogg, 40 N. H. 282,which cases I have examined with others cited in the valuable note in 70 Amer. Dec. 344. (Pryor v. Stone.) Certainly, a bare intention,