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though by custom he is called by a name ment. There was no controversy raised in other than “plaintiff.” The judgment of the the action as to the furnishing of said builddistrict court is therefore affirmed.

ing materials by plaintiff, or the use there

of by defendants in the erection of said PEMBERTON, C. J., and HARWOOD, J., building, and the nonpayment therefor, as concur.

alleged. The only defense set up was that defendants claimed said premises as their homestead, and that the same, being a home

stead, was not subject to a lien for said BONNER v. MINNIER et al.

building materials so purchased and used in (Supreme Court of Montana. Sept. 5, 1893.)

the improvement thereof. There was some MECHANIC'S LIEN-WHAT CONSTITUTES-LIABILITY

controversy in the case as to whether said OF HOMESTEAD,

premises constituted the home of defendants A lien for materials furnished is a "mechanic's lien,' within the meaning of Code

at the time said materials were furnished Civil Proc. $ 323, providing that such a lien and used in the improvement thereof; but shall not be affected by the provisions for the trial court sustained the contention of homestead exemptions. De Witt, J., dissenting.

defendants that said premises constituted

their homestead, and the court further held Appeal from district court, Deer Lodge that the statutes of this state exempt home county; D. M. Durfee, Judge.

steads from the charge of a lien for buildAction by E. L. Bonner against Michael

ing materials procured and used in the erecMinnier and others. From a judgment for

tion of improvements thereon, and judgment defendants, and an order denying a motion

was rendered accordingly, from which judgfor a new trial, plaintiff appeals. Reversed.

ment, and an order overruling plaintiff's mo Statement of the case by HARWOOD, J.:

tion for a new trial, this appeal was prose This action was brought to obtain judg

cuted. ment, and foreclose a lien to enforce payment, for materials furnished and used in Brantley & Scharnikow, for appellant the construction of a certain house in the vil- W. H. Trippet, for respondents. lage of Champion, Deer Lodge county. It appears that said house was built upon a piece

HARWOOD, J., (after stating the facts.) of land theretofore vacant, being part of a We think, under the facts shown in this quartz lode mining claim, purchased by de

case, the premises in question were properfendant Minnier from one Baudet, which

ly held to constitute defendants' home purchase was originally evidenced by a bill

stead. The important question of law inof sale executed by Baudet to Minnier. But

volved in this appeal is whether a homeit appears to be conceded that the money

stead is exempt from foreclosure and sale used in said purchase belonged to defendant

to satisfy a lien created by law in favor of Mrs. Minnier; that, while the title to the

one who furnishes materials purchased and property stood in that condition, the defend

used by the owners of such homestead in ant Minnier, with the knowledge and ap- the improvement thereof. It is not disputed proval of his wife, commenced the erection

that by the provisions of chapter 82, p. 1028, of a house on said land, and purchased from

of the Compiled Statutes of this state, a plaintiff, and used in said structure, certain lien is expressly created in favor of parties lumber and other materials; that, to secure furnishing materials contracted for and used payment for said building material, plaintiff | by the owners of land in making improve filed his account thereof, and notice of lien

ments thereon, without any exception in on said property, as provided by law; that, favor of homestead premises. But it is consome time after the commencement of the

tended by respondents that, notwithstandconstruction of said house, a formal convey- ing the provisions of that statute, the statance of said premises was made by said ute providing exemption of homesteads and original owner, Baudet, and defendant Min

other property from forced sale on execution nier, to his wife, Mrs. Minnier. Said house (sections 321-330, Code Civil Proc.,) withappears to have been constructed and ar- holds the homestead from the operation of ranged so as to be used for residence pur- such lien if it accrued for material alone, poses, or as a place of business, or for both furnished and used in the improvement of such purposes; that, as soon as the house the homestead. To maintain this proposiwas sufficiently constructed to admit of habi. tion, respondents rely on a strict and very tation, defendant and his wife moved there- narrow interpretation and application of the in, and occupied the same continuously as clause of section 323, Code Civil Proc., which their home, and Mrs. Minnier also fitted provides that "such exemption shall not atup and operated a barber's shop in one room fect any laborer's or mechanic's lien, or exof said house; that defendants own no other tend to any mortgage thereon lawfully obreal property as a homestead or otherwise; tained." It is argued that this provision is that defendants failed to pay for said build- not broad enough to include the lien de ing materials, wherefore this action was clared by statute in favor of one who sim. brought to foreclose said lien, and subject | ply furnishes materials used in the improve said premises to sale to enforce such pay- ment of a homestead; and that, consequent

ly, the plaintiff, who furnished material only, ment on his homestead, and enjoy the same which was procured and used by defendants without payment, in case no property can be in the improvement of their homestead, is found over and above the exemption, there is barred of relief, by way of enforcement of still another provision in the same statute said lien. In the case of Merrigan v. En- which seems to give further light as to the glish, 9 Mont. 126, 22 Pac. Rep. 454, the intention of the legislature on the point uncourt refused to so construe and apply the der consideration, namely, a provision of provisions of the exemption statute just section 328, wherein it is declared "that this cited as to deny the enforcement of a lien act shall not be construed as to in any on a homestead for material furnished manner relate to judgments or decrees rennamely, a mantel-in favor of the mechanic derd on the foreclosure of mortgages, either who furnished the same, as well as the la- equitable or legal.” The lien under considbor involved in setting said mantel in the eration is a specific incumbrance, existing building. The only real difference between through a positive enactment of the legislathat case and the one at bar appears to be ture, operating upon certain facts, and the that, in the former case, the lien claimant lienor would seem to be entitled to his judgoccupied the position of furnisher of mate- ment of foreclosure, on showing the facts rial, as well as labor, on the premises, in and a compliance with the statute, the same shaping the material so furnished into the as a party, on making out his case, is entitled building; whereas, in the case at bar, the to judgment for debt, although the debtor tien claimant furnished and delivered mate- may not have property subject to an orrial, without any labor towards the erec- dinary execution. Now, when it comes to tion of the building on the premises. If the the execution of these judgments, it is found view urged by respondents is adopted, the that the legislature has made a distinction effect of such holding would appear to be

between them in the statute relating to exthat one who manufactured, hauled, and de- emptions, declaring, in effect, that such exlivered the brick, or quarried, cut, hauled emptions shall not be construed to affect and delivered the stone, or went into the

judgments or decrees of foreclosure of speforest, cut, manufactured, transported, and citic incumbrances. If this is not the plain delivered the lumber contracted for, and

intendinent of the provisions of the exempused in the erection of improvements on a tion statute last above quoted, we think it homestead, would be denied enforcement of

would be difficult to conceive or reason the lien which the law declares he shall ably explain the intent those provisions have to secure payment for such materials,

manifest. The rules of construction that because he would be simply the furnisher of several provisions of statutes relating to the material for the structure, like the plaintiff, same subject shall be considered and conand would, according to such construction strued toegther, so that all the provisions and application of the exemption statute, shall be given reasonable force and effect, not be included within the meaning and in- if possible, (section 631, Code Civil Proc.,) tent of the legislature in declaring that such and that, "when a statute is equally suscepexemptions shall not affect the liens of la- tible of two interpretations, one in favor of borers and mechanics. We do not think natural right, and the other against it, the such a view gives effect to the intent of the former is to be adopted," (section 638, Id.,) legislature, as manifest in these statutes. both, we think, demand such a construction Even without any further expression of the of the statutes in question as will give force legislative intent on this point than the and effect to appellant's lien. Respondents clause of section 323 above referred to, we cite, in support of their position, Richards could not adopt the view urged by respond- V. Shear, 70 Cal. 187, 11 Pac. Rep. 607, ents as giving effect to the intent of the wherein the court held that the homestead law. We are satisfied that, in providing was not subject to sale in satisfaction of a that such exemptions shall not affect any lien for material alone, furnished in the imlaborers' or mechanics' liens, the legislature | provement thereof. While there is some referred to the liens for material and labor likeness, but not entire similarity, in the provided for by the statutes of this state provisions of the California statute and the commonly mentioned as the “Mechanic's clause of section 323 of our Code above Lien Law." Such Improvements, in fact, quoted, it does not appear that the California comprise labor bestowed upon material, court was aided by such a general proviso both on and off the premises where the im- as we have in section 328 to show the inprovement is placed. Payment for the ma- tendment of the legislature. It has been terial is payment for the labor expended up- shown that the exemption statute of Monon it through all the changes it has under- tana was not taken from California, in Lindgone, from its natural raw state, until placed ley v. Davis, 7 Mont. 207, 14 Pac. Rep. 717, in the structure.

and Merrigan v. English, supra; and considBut if, in looking at section 323 of the ex- ering the difference of form, as well as addiemption statute alone, there is room to raise tional provisions we have to construe and doubts as to the intent of the legislature, apply, it would seem to be an abdication of and room for contention that a homestead reason to follow the holding in the California claimant may obtain material for improve case just dted. It should be further observed that in a recent case the supreme "homestead" itsell embodies the idea of occourt of Nebraska placed a construction en- cupation. Thomp. Homest. & Ex. $ 100 et tirely opposed to that of California on statu- seq. It is accordingly held in many decisions tory provisions entirely similar. Windmill that, to constitute a homestead, there must Co. v. Shay, 48 N. W. Rep. 896. The holding be occupation. Kurz V. Brusch, 13 Iowa, in the case of Duncan v. Batemen, 79 Amer. 371; Moore v. Granger, 30 Ark. 574; ChipDec. 109, cited by respondents, is based upon man v. McKinney, 41 Tex. 76; Avery v. different statutory provisions than those pre- Stephens, 48 Mich. 246, 12 N. W. Rep. 211; vailing in Montana. It was there held that Elston v. Robinson, 23 Iowa, 210; Christy v. the statute of Arkansas did not create a Dyer, 14 Iowa, 440; Blun v. Carter, 63 Ala. lien in favor of one who simply furnished 235; Charless v. Lamberson, 1 Iowa, 435; material. Such might be the case. The lien Bowker v. Collins, 4 Neb. 494; Drucker v. depends on the statute for existence. But Rosenstein, 19 Fla. 191, and cases cited on here it is not disputed that the statute im- page 195; Thomp. Homest & Ex. $ 241; poses the lien in favor of appellant; and we Pryor v. Stone, 70 Amer. Dec. 347, note. think, without doubt, the legislature intended Again, if a lien becomes fixed upon premthe homestead should be subject to a lien, ises before they become a homestead, it is and to foreclosure and sale thereunder for held in the decision that the creation of a material obtained and used by the owners of homestead does not divest the lien. Tuttle the homestead in the improvement thereof. v. Howe, 14 Minn. 147, (Gil. 113;) Cogel v. Judgment is therefore reversed, and the Mickow, 11 Minn. 478, (Gil. 354;) Potshuisky cause remanded for proceedings in con- v. Krempkan, 26 Tex. 309; Pope v. Graham, formity with the views herein expressed. 44 Tex. 198; Thomp. Homest. & Ex. $ 317,

and cases cited; 9 Amer. & Eng. Enc. Law, PEMBERTON, C. J., concurs.

p. 465; McComb v. Thompson, 42 Ohio St.

135; Thompson v. Pickel, 20 Iowa, 490; McDE WITT, J., (dissenting.) This action is Cormick v. Wilcox, 25 Ill. 274; Estate of brought to foreclose a lien for materials fur- McCauley, 50 Cal. 544; Elston v. Robinson, nished for a building of defendants. The 21 Towa, 534; Furman v. Dewell, 35 Iowa, case was tried by the court without a jury. 170; Cowgell v. Warrington, 66 Iowa, 666, Defendants are husband and wife. The 24 N. W. Rep. 266; Gunn v. Miller, 43 Ga. court gave a money judgment against Minnier, 377; D'Ile Roupe v. Carradine, 20 La. Ann. but denied the lien. Plaintiff appeals. The 244; Gunn V. Barry, 15 Wall. 611. See, defense against the lien was that the prem

also, cases cited in last paragraph. Many of ises were a homestead, and, as such, “not the above cases are cited in Thompson on subject to forced sale on execution or any Homesteads, (section 317,) and sustain the other final process from a court,” (section

text of that author. It is therefore often 322, Code Civil Proc.,) and that a material important to determine when the lien acman did not come within section 323, Id.,

crued, and when the occupation of the which provides that "such exemption (home- | premises as a homestead commenced. In stead) shall not affect any laborer's or me

this case the material was furnished between chanic's lien," etc. I will examine these two

February 20 and April 28, 1890. The lien for propositions. Our homestead law is as fol. this material, if any exists, dates from the lows: "A homestead consisting of any quan

furnishing of the material, and not from the tity of land not exceeding one hundred and

filing of the lien. Merrigan v. English, 9 sixty acres used for agricultural purposes,

Mont. 113, 22 Pac. Rep. 454. and the dwelling house thereon, and its

The facts in the case at bar are as follows: appurtenances, to be selected by the owner The building was being erected during the thereof, and not included in any town plot,

time that this material was furnished. The city, or village; or, instead thereof, at the material so furnished was lumber, molding, option of the owner, a quantity of land not lime, glass, windows, doors, etc. The lower exceeding in amount one-fourth of an acre, part of the house was of logs, a class of mabeing within a town plot, city or village, and

terial not included in that furnished by plainthe dwelling house thereon, and its appur- tiff. It does not appear just when the buildtenances, owned and occupied by any resi- ing was commenced. Some of the witnesses dent of this territory, shall not be subject testified that defendant Minnier and wife to forced sale on execution, or any other lived on the other side of the street while final process from a court: provided, such the building was being erected. One witness homestead shall not exceed in value the sum says: “I know this house in controversy, and of two thousand five hundred dollars." Sec- am acquainted with Mr. Minnier and Mrs. tion 322, Id. Under the law of this state, Minnier. I remember when the house was there is no provision, as there is in many built. They made their home right in the states, for filing or recording a declaration house, and until it was finished. After they of homestead. Ownership and occupation by had the house commenced, they built a kind a resident of the state give the right of of a little house of boards, temporarily, on homestead. The language of the statute is the back part of the lot, until they could "owned and occupied;" and, even without move into the house." All agree that as soon the word "occupied" in the statute, the word as the house was habitable the defendants

mored in. The court found that the prem- defeat. We think it was meant to be effectises were the homestead of defendants. That ive in cases like the present, and that comfinding is supported, and the homestead is plainant is entitled to the relief he prays." constituted, if there be evidence that defend- So, in the case at bar, the defendants had 110 ants occupied the premises as a homestead other property whatever. They had their all when the alleged lien accrued. I think that in this house. The house was situate in the there was such evidence. A portion of the town of Champion, Deer Lodge county. The building was of logs. These would naturally husband occasionally went to Butte for a be used before the class of material furnished few weeks to get work. The wife stayed at by plaintiff. There was evidence that de- home in Champion, and worked as a barber. fendants built a small temporary house on It was in the latter part of the winter that the ground after they commenced the build- they were building this house, and in this ing, and that they lived in that temporary season of the year, which is likely to be instructure. It is not contrary to the evidence clement, they put up a temporary board that defendants were living on the premises house, in which they lived. They went into in this temporary structure after they com- the building on which the lien is filed the menced the building, after the log work had moment that it was habitable. However far been done, and wher the plaintiff's material the decided cases go in holding that occupawas being supplier This case bears some tion is necessary to constitute a homestead, resemblance to that of Reske v. Reske, 51 the law must be reasonable as to what occuMich. 541, 16 N. W. Rep. 895, decided by Mr. pation is. The Iowa supreme court says in Justice Cooley. The closing language of that Neal v. Coe, 35 Iowa, 407, cited in Drucker opinion is so much in point that I give it en- v. Rosenstein, 19 Fla. 196, and also in many tire: “The question now is whether, on the other decisions and by text writers, as folfacts recited, the lot had become a 'home- lows: “While intention is not alone sufficient stead' in a legal sense before the levy was to impress the homestead character, yet it made upon it. We are of opinion it had. may be considered in connection with the cirThe lot, as has been said, was procured for cumstances. Some time usually intervenes the purposes of a home, and complainant, after the purchase of property before it can aided by the industry and frugality of his be actually occupied. Even after the process wife, was proceeding to make it such as rap- of moving, it frequently takes days before Idly as their limited means would permit. the furniture can be arranged, and the house They inclosed it; they had their domestic placed in comfortable condition for actual ocanimals upon it; they came to live in the im- cupancy. Under such circumstances great inmediate vicinity; they made a well; and convenience might arise if the homestead they put up outbuildings. Everything but character was made to depend upon the the dwelling proper had been erected before actual personal presence of the members of the levy was made, and the complainant was the family. Law is entitled to and can combargaining with a builder for a house. If mand respect only when it is reasonable, and anything was lacking to make the lot a adapted to the ordinary conduct of human homestead, it was because the poverty of affairs." The supreme court of Alabama, in complainant had precluded his advancing his Blum v. Carter, 63 Ala. 240, after reviewing improvements as rapidly as he desired. The

many of the cases which I have cited above, lot, however, in the minds and hearts of says: “Guided by these principles, we hold complainant and his wife, had been appro- that, to constitute a valid claim of home priated as a home from before the day of stead, there must be an occupancy in fact, or their marriage; it was all the home they a clearly-defined intention of present resihad; it represented all their scanty means, dence and actual occupation, delayed only and was the center of their domestic hopes by the time necessary to effect removal or to and aspirations. They did not as yet sleep complete needed repairs or a dwelling house upon it or take their meals upon it; and in process of construction. An undefined, probably, if they had done this in some of floating intention to build or occupy at some the buildings already constructed, their right future time is not enough. And this intento claim a homestead would not have been tion must not be a secret, uncommunicated disputed. But this is not an indispensable purpose. It must be shown by acts of prepcondition. The man who buys a home which aration of visible character, or by something is all ready for occupancy cannot have it equivalent to this. Daniel V. Collins, 57 taken from him, as he is attempting to move Ala. 625; Boyle v. Shulman, 59 Ala. 566; in his goods, because he has not yet eaten or Preiss v. Campbell, Id. 635; Chambers v. slept within it. Any one might be deprived McPhaul, 55 Ala. 367." See, also, the mat of a homestead if so narrow a construction ter discussed in many of the cases above of the privilege should prevail. It is people cited, and also in Williams v. Dorris, 31 Ark. like this complainant and his wife, with very 466; Solary v. Hewlett, 18 Fla. 756; Barnes limited means, that the law encourages with v. White, 53 Tex. 628; Grosholz v. Newnan, its promise to save their home to them if 21 Wall. 481; Fogg v. Fogg, 40 N. H, 282,they will but secure one; and it would be a which cases I have examined with others citdeceptive promise if it were only made on ed in the valuable note in 70 Amer. Dec. 344, conditions which any creditor might so easily (Pryor v. Stone.) Certainly, a bare intention,


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without visible acts, to occupy premises as a emption, and spedfically names the excepted homestead, would not impress them with classes of persons as "mechanics and la. that character. As was said in Solary V. borers." It does not in terms except all Hewlett, 18 Fla 760: "In this case there is classes of lienors named in section 1370, but no evidence, save the allegation in the an- selects two of those classes, and names them. swer, that the appellee intended to repair If the intent was to let into a lien on a and reside on the premises. He had taken homestead all lienors named in section 1370, no steps, had done no act, to impress it with the statute would have said so. When it the character of a homestead, although he expressly selects two classes only, namely, owned it several months before contracting laborers and mechanics, and designates them the debt upon which the judgment was by name, and omits to name all other per found. His intentions cannot avail him un. sons in whose company mechanics and lader these circumstances." But in the case borers are found, in section 1370, the omis. at bar it is deduced from the testimony, and sion is certainly significant, and renders ap not at all unreasonable so to consider, that plicable the maxim "expressio unius," etc. the defendants were actually upon the ground, | It is quite true that every man who tur. in their temporary board house, when plain- | nishes material, is also, in one point of view, tiff's material was furnished, and there was furnishing labor, for every finished product present the visible intention to occupy, and includes the raw material and the labor the persevering preparation, and the imme- placed upon it, and, as a rule, the labor in diate occupation of the building, even before the finished product is of much more value It was fully completed. These facts, I am of than the raw material. This may be obopinion, the lower court was justified in con- served universally. The lumberman sells cluding brought the case at bar within the boards. The greatest value in the boards is doctrine of the cases above cited, and from the labor placed upon them. The quarrywhich I have made the foregoing quotations. man sells building stones. The original cost Bona fide homesteads must be protected un- of the material was almost nothing. The der the law, and, on the other hand, home value of the finished block is almost wholly stead claims must not be allowed to be made in the labor. The capitalist sells the use of the instrument of fraud. I think the bona money, which money represents labor. But fides of defendants in this case is sufficiently when we deal in the wares of the lumbermanifest. It may be that it is a hardship up- man, the quarryman, or the capitalist, we on plaintiff. He may not have security upon

do not call those wares "labor," nor do we the building into which his material went.

call the dealers in those wares "laborers." But he was not required to furnish the mate- Therefore it does not seem to me to be the rial, and it is not to every class of creditors simplest and plainest construction of the that the law gives this special statutory se

statute to make the words "laborer or me curity of lien.

chanic" include a material furnisher, because And this brings me to the consideration the material supplied by that furnisher is of the second point in the case. Section 323, the result of labor. I am of opinion, there Code Civil Proc., provides that the home fore, that the words "mechanics and lastead exemption shall not affect any "la- borers," in section 323, are not generic, as borers' or mechanics' liens.” A homestead appellant urges, and would not include mais thus not exempt from the lien of a laborer terial men and lumbermen. This view has or mechanic. Appellant contends that in the been held in California Richards v. Shear, exception the term "laborer or mechanic" 70 Cal. 187, 11 Pac. Rep. 607; Walsh v. is generic, and is intended to include all ma- | McMenomy, 74 Cal. 356, 16 Pac. Rep. 17. I terial men or lumbermen, as plaintiff is in quote as follows from 70 Cal. and 11 Pac. this case. Section 1370, Comp. St., gives a Rep.: "It is said for the appellants that it lien to certain classes of persons, and de was not the intent of the legislature to subscribes them as “every mechanic, builder, ject the homestead to execution or forced lumberman, artisan, laborer, or other person

sale in satisfaction of judgments obtained or persons, association or partnership or on debts secured by liens of mechanics and corporation, that shall do or perform any laborers who perform manual labor in and work or labor upon, or furnish any material, about the building, and withhold such priv. machinery or fixture for, any building,” etc. llege from the men who furnish materials This list of lienors includes mechanics and therefor. We can

see great force in the laborers, and also lumbermen, and general suggestion of Mr. Thompson, in his work on material men, as persons are called who fur- Homesteads and Exemptions, (section 312,) nish material. Section 322, Code Civil Proc., that there is no difference in principle be exempts the homestead from forced sale on tween a debt due to A., who has provided execution, or any other final process from a me with the land upon which I have erected court. If the statute of exemptions had my building, and a debt due to B., who has stopped here, it is plain that all persons furnished the materials to build it, and a named in section 1370 as lienors would be debt due to C., whose labor has built it. deprived of any enforceable lien against a But where the legislature has undertaken homestead. But section 323 follows, and to deal with the subject, and has declared makes an exception to the homestead ex- from what the homestead shall be exempt.

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