Steinman v. Miller , 2 Pennyp. 190 ( 1882 )

— The opinion of the Court was delivered by

Green, J.

We think this case is determined by our ruling in the cases of Houston, Smith & Co.’s Appeal, 6 W. N. C., 162; and Barclay’s Appeal, 11 W. N. C., 359.

In both of them we held that the omission of the name of the owner from the claim was a fatal defect, and that this defect was not' cured by filing the lien against one who was a contractor, and naming him also as reputed owner. There is no question in the present case that Miller was the contractor, and also that he was owner of a part of the property in question. But he was never the owner and; had no estate or interest in two of the nine lots, against’ which, with the buildings on them, the lien was filed. The agreement between Griel, the owner, and Miller, the contractor, stipulated for the conveyance to Miller of seven of the lots as the consideration principally for the erection of the houses. The other two lots remained in the ownership of Griel, and, as the lien included them, it was necessary that he should be named as owner, and have notice as such of the proceedings.

In McOay’s Appeal, 1 Wr., 125, we held that the omission of the name of the contractor, when the work was done under a contract with one who was not the owner, was a fatal defect.

The reason given was that the name of the contractor is required by the statute to appear in the claim, and the absence of it is therefore fatal.

The same requirement is contained in the statute as to the name of the owner, and the omission of his name is equally fatal. The case of Christine v. Manderson, 2 Barr, 363, is not applicable, as it was expressly held to arise under the Act of 1806, which does not require the name of either the owner or contractor to appear in the lien. The objection to the sei. fa., under the Act of 1808, that it did not contain the name of the owner, was held unavailing when made by the contractor, who was not the owner: Gaule v. Bilyeau, 1 Cas., 521, has no application, as it only relates to the interest of the tenant in the land under the lease from the owner, and on that subject there is no controversy in the present case. Miller had an undoubted estate in seven of the lots under the agreement between him and Griel; and his description as owner, or reputed owner, is a full satisfaction of the requirement of the statute as to those lots. But, as to the other two lots, he had no estate or interest in them; and his actual or reputed ownership of the seven lots could not embrace them except at the peril of subjecting the property of the owner of the two lots to judicial proceedings and sale without his knowledge.

Judgment affirmed.