Caltrider v. Isberg

Adkins, J., delivered the opinion of the Court. The bill of complaint in this case alleged: “That at the request of Herman Zeigler, contractor, he (the complainant) furnished a large amount of lumber, millwork, cement, nails, plaster and hardware to be used in the erection of two dwelling houses situated in the First Election District of Harford County, Md., at Otter Point, and that there is now due and owing to your orator, for the material so furnished, the sum of $1,184.18; that the said Herman Zeigler psed said material in the erection of two new dwelling houses, and at the time of the delivery of the first material by your orator, and for some time thereafter, Ernest A. Isberg and Eleanor L. Isberg, his wife, were the owners of the property on which both houses were under construction and erected; that subsequently thereto and on the 22nd day of Hovember, 1922, Ernest A. Is-berg and Eleanor L. Isberg, his wife, by deed conveyed a certain lot of ground upon which one of said houses was erected to their daughter, Catherine May Isberg; ⁶⁶⁰ that after the delivery of part of said material your orator discovered that the said contractor, Herman Zeigler, erected one house for Eleanor L. and Ernest A. Isherg and the other for May Isherg; that as to what portion of the material furnished hy your orator and described in the lien claim was used in each of the respective houses your orator is unable to say, except through testimony of said contractors, Herman Zeigler, or some other expert; that the said sum of money, so as aforesaid due and owing to your orator for material furnished by him as aforesaid, being due and unpaid, he did on or about the 17th day of August, 1923, file in the - clerk’s office of the Circuit Court for Harford County a claim for a lien under article 87 of the Revised Code of Maryland, against the said.two dwelling houses, the ground upon which they are erected, and so much other ground immediately adjacent thereto, and belonging in like manner to the owners of said dwellings as may be necessary for the ordinary and useful purpose of said buildings, as will appear by reference to a duly certified copy of said lien claim, herewith filed as part hereof, marked 'Exhibit A’; that the first material was delivered on October 4th, 1922, and the last on July 2nd, 1923, and that before filing said lien and within sixty days after the last material was furnished, plaintiff gave notice in writing to the said Catherine May Isberg, Ernest- A. Isherg and Eleanor L. Isberg, his wife, the owners or reputed owners of said dwelling houses -and grounds, of his intention to claim the benefit of said mechanic’s lien law; that the said Ernest A. Isberg and Eleanor L. Isberg, his wife, having paid said contractor for the eréction of the dwellings which they retained and the said contractor having paid plaintiff “enough money to cover all material that went into said dwelling, and the said Catherine May Isberg being indebted unto the said contractor, Herman Zeigler, for the erection of the .dwelling of which she is the owner, to the extent of $1,189.65, your orator made out his bill in the -name of Catherine Is-berg.” ⁶⁶¹ The prayer of the bill Is for a decree for the sale of the property described in the lien claim, or so much thereof as may he necessary, and for the distribution of the proceeds “among your orator and the parties hereto”; that plaintiff’s claim be paid with interest, and for further relief. Exhibit “A,” filed with the bill, is as follows: “Lewis 0. Oaltrider, trading as L. C. Oaltrider and Sons, claim the sum of eleven hundred and eighty-four dollars and eighteen cents, with interest, thereon from the 2nd day of Inly, 1923 to be due him, against those two frame dwellings or buildings situated in said county two stories in height, and against the ground covered by the said buildings and so much other ground immediately adjacent thereto, and belonging in like manner to the owner of such building as may he necessary for the ordinary and useful purposes of said buildings, the whole of which ground is described as follows : All those lots or parcels of ground as designated upon the plat of the Willoughby Beach Co. and recorded among the Land Records of Harford County in Land Records Libor J. A. R. No. 139, folio 499 etc. and known as lots Nos. 1 and 2, sec. 6, and lots Nos. 1, 2, 3, 4 and 5, sec. 13, being the same lots of ground which were granted and conveyed by the Willoughby Beach Co. to the said Ernest A. Isberg and Eleanor L. Isberg, his wife, by deed dated September 7th, 1912, and recorded among the aforesaid Records in Liber J. A. R. No. 137, folio 439, etc. And also all that lot or parcel of ground in the Eirst Election District of Harford County and designated upon the plat of the Willoughby Beach Co. and known as lot No. 2 in section 6 as is mentioned or referred to in a deed dated November 2nd, 1922, and recorded among the Land Records of Harford County in Liber D. G-.

W. No. 181, folio .17, etc. was conveyed by Ernest A. Isberg and Eleanor L. Isberg, his wife, to Catherine May Isberg, of which said ground, and the buildings and improvements thereon, the said Ernest A. Isberg and Eleanor L. Isberg and Catherine May Isberg, at the time of furnishing the work and materials hereinafter ⁶⁶² mentioned were the owners or reputed owners. The said claim being for work done and material furnished by the lienor for or about the erection and construction of the said buildings at the instance and request of Herman Zeigler, the contractor thereof at the particular times, and of the nature or kind and amount, and for the prices set forth in the bill of particulars hereto annexed, and which work has been finished and materials furnished within less than six months before the filing of this claim. And the said lienor duly apportions the sum of eleven hundred and eighty-four and eighteen one-hundredths dollars against the buildings above described. “Wherefore the said Lewis C. Oaltrider, trading as L. C. Oaltrider and Sons, request the Clerk of the Circuit Court of Harford County to file and record this claim as a lien as well against the said lots of ground and buildings thereon as against the said Ernest A. Isberg and Eleanor L. Isberg, his wife, and Catherine May Isberg as the owner or reputed owners thereof, agreeably to the provision of the Code of Public General Laws, Article 63, entitled 'Mechanic’s Liens.’ “Gwynn Kelson, “Attorney for Lienor. “L. Q. Oaltrider & Sons, “Lienor.” The bill of particulars annexed to- the exhibit is headed: “Bill of Particulars. “0. & P. Phone, 26. “L. 0. Oaltrider & Sons,' Dealers in “Hardware, Peed, Eejtilizer, Seeds and General Supplies, All Kinds of Earm Implements, Lumber and Mill Work. “Sold to Herman Zeigler, Aec.

Miss Catherine Isberg. “Terms: Material for two houses at Otter Point, Md. “Oct. 4 — 6,500 ft. T & G Roofers $247.00.” Here follows a list of items with dates of delivery and prices, amounting to $3,402.03; the last being on July 2nd, ⁶⁶³ 1923; and itemized credits amounting to $2,217.85, leaving a balance of $1,184.18. Tbe claim, was recorded on August 17th, 1923; the exhibit being a certified copy. Defendants demurred to tbo bill of complaint, and assigned three grounds, viz: 1.

That no cause is shown for equitable relief. 2. That it does not appear whether the alleged contract for the erection of the two dwelling houses mentioned in the bill was a joint contract or a several contract. 3. That plaintiff has not shown how much is due on each dwelling house. The court sustained the demurrer and dismissed the bill of complaint.

The case comes up on an appeal from that order. In the opinion filed by the learned chancellor the following reasons are assigned for his conclusion: 1. Insufficiency of description of the property. 2. Failure to1 apportion the sum. claimed. 3.

Joint demand against both owners without any statement as to whether the houses wore erected under a joint contract for both, or under separate contracts for each. The first reason is not in our opinion valid. The claim as filed describes several lots by numbers designated upon a plat duly recorded among the land records of Harford County, the libér and folio being given, and also refers to tbe deeds by which they were conveyed. It was not necessary to state specifically that they were contiguous lots, and the fact that they may have contained more land than was necessary does not affect the validity of the lien.

Provision is made by sections 5, 6, 7 and 8 of article 63 of tbe Code for having* proper boundaries fixed on proper application by the owner both before and pending proceedings for the enforcement of a mechanic’s lien and, if he fails to avail himself of these provisions, he cannot avoid the lien merely because too much land is claimed. Fulton v. Parlett, 104 Md. 70 . Tbe second reason is also invalid, assuming that the right to claim a lien attached while the lots on. which both of the houses were built belonged to the same persons. Miller v. ⁶⁶⁴ Barroll, 14 Md. 183 .

A failure to apportion a claim does not defeat the claim, as section 21 provides as the only penalty for failure to make such apportionment that “otherwise such claim shall be postponed to other lien creditors.” Fulton v. Parlett, supra. And the bill expressly alleges that “at the time of the delivery of the first material * * * and for some time thereafter, Ernest A. Isberg and Eleanor L. Isberg, his wife, werte the owners of the property on which both houses were under ■construction and erected,” and that the conveyance to Catherine May Isberg of the lot on which one of the houses was being erected was not until November 22nd, 1922, nearly two months after the buildings were begun; and it appears from the bill of particulars filed with the claim that prior to that conveyance the