Clark v. Schatz , 24 Minn. 300 ( 1877 )

Gileillan, C. J.

The statute creating and regulating mechanics’ liens (Gen. St. c. 90) provides :

“Section 1. Whoever performs labor, or furnishes materials or machinery for erecting, constructing, altering or repairing any house, etc., by virtue of a contract or agreement with the owner or agent thereof, shall have a lien to secure the payment of the same upon such house, etc., together with the right, title and interest of the person owning such house, etc., on and to the land upon which the same is situated, ” etc.

“Section 7. Any person entitled to a lien under section 1 aforesaid shall make an account in writing of the item of labor, skill, material and machinery furnished, or either of them, as the case may be, and after making oath thereto, within one year after the time of performing such labor and skill, or furnishing such material and macliinery, shall file the same in the register’s office of the county in which such labor, skill and materials have been furnished, which account;, so made and filed, shall be recorded in a book to be provided separately by the register for that purpose, and shall, from the commencement of such labor or the furnishing of such materials, and for two years after the completion of such labor or the furnishing of such materials, operate as a lien on the several descriptions of structures and buildings, and the lots of ground on which they stand,” etc.

A form of oath or affidavit, which may be used to the account mentioned in section 7, is set forth in section 18. This form sets forth that the labor or material was performed or furnished under a contract with C. D., and “that the said C. D. was, at the time said contract was entered into, and said labor was performed, and said material was furnished, the owner of the house, [or other building,] and that said building is situate upon a certain lot of land owned by said C. D.,” giving the description of it.

The objections made to the account and affidavit in this case are that it nowhere shows that Schatz, under a contract with whom the materials were furnished, was the owner of, or agent for the owner of the building; and it shows affirmatively that he was not the owner of the land on which it was constructed.

These objections are true in fact, and without deciding the effect in case of the latter, we think the first one is well taken. Section 1 of the statute gives no lien on a building for labor performed or materials furnished, except where performed or furnished by virtue of a contract or agreement with the owner or agent, and section 18 clearly contemplates that the affidavit to the account shall show that the labor was performed or materials were furnished by virtue of such a contract. Although the affidavit used to perfect the lien need not follow literally the form given in that section, and may be varied to suit the circumstances, yet it must, in matters of substance, conform to it. The three sections we have referred to, taken together. , ¿how that tbo ■ statutes intend that the record made by the 'claimant of the lien, and which is to operate as a lien, shall | show, prima facie, that the party is entitled to the lien which ■he claims.

The account and affidavit in this case may be true in every particular, and yet the plaintiffs not be entitled to any lien.

Judgment reversed as to the defendant Girard, and judgment ordered for her on the finding of the court below.