Bertheolet v. Parker, Imp.

Mechanic’s Lien. (1) What petition must shoio. (2) Requisites of notice. 1. The petition of a subcontractor for a lien for work clone upon a building (under ch. 153, R. S.) must show with whom the original contract for the erection or repair of the building was made, and that such person had an interest in the premises affected by the proceeding, upon which a lien can be enforced, or it is inadmissible in evidence in an action to enforce the lien, and cannot be aided by the complaint. [2. Lyon, J., is also of the opinion that the“notice required by the statute (sec. 2) must specify the sum for which the lien is claimed.]

APPEAL from the Circuit Court for Crawford County. The defendants Eeynolds & Lefeldt were employed by the defendant M.ary E. Parker to erect, and did erect, a dwelling house for her on certain lots described in the complaint, situated in the city of Boscobel. The plaintiff performed labor .for Eeynolds & Lefeldt on such house, at a stipulated price, a balance of which remains unpaid. This action was to recover such balance of Eeynolds & Lefeldt, and to enforce a lien therefor on such building and lots. Within the time prescribed by statute (E. S., ch. 153, sec. 2), the plaintiff served the following notice on Mrs. Parker: “ To Mrs. Mary E. Parker, administratrix of the estate of D. T. Parker, deceased: Madam: You are hereby notified that I, the undersigned, have done work as subcontractor under Messrs. Eeynolds & Lefeldt, on the building owned by you as such administratrix, in the city of Boscobel, Wisconsin, situated in blocks 2 and 11 in Parker’s addition to said city of Boscobel, according to tbe record plat thereof; and tbat my said work so done on your building as aforesaid, is unpaid for; and tbat I claim tbe benefit of tbe lien given and granted by cb. 153 of tbe revised statutes of Wisconsin, entitled £of tbe liens of mechanics and others,’ and of tbe several acts amendatory thereof. Dated this 2d day of September, 1875. “N. Bertheolet.” The plaintiff also, in due time, filed in the proper office bis claim or petition for a lien, in which be states (among other things) that the work for which he claims the lien, was performed by him as subcontractor under Reynolds & Lefeldt, “ on the building and premises [describing them] belonging to the estate of Dwight T. Parker, deceased.” There is no averment therein that the defendant Mary E. Parher has any interest in such premises. Mrs. Parker alone defended the action. Her answer is a general denial. On the trial, the petition for a lien was offered in evidence by the plaintiff, and received against the objection of Mrs. Parker. The trial resulted in a judgment against Mrs. Packer alone. The judgment is, that plaintiff have a lien upon the right, title and interest of Mrs. Parker in and to the building and premises described in the complaint, which she had when notice of the plaintiff’s claim for a lien was served on her, to the amount whjch was found due the plaintiff'from Reynolds & Lefeldt, and costs. The jury found that when such notice was served, she owed Reynolds & Lefeldt a much greater sum than plaintiff recovered. The defendant Mrs. Parker appealed from the judgment. They contended, among other things, 1. That the notice of plaintiff’s claim given to Mrs. Parker was insufficient. (1) The action is for a lien upon a building situate upon two specified lots in block 2, and two specified lots in block 11, owned by her in fee simple; the lien claimed in the notice is upon a building “ situated upon blocks 2 and 11,” owned by ber as administratrix of a certain estate. The notice does not describe the property with sufficient certainty. McCarty v. Van Etten, 4 Minn., 461. (2) The notice does not state the amount claimed. Thomas v. Barber, 10 Md., 380; Phillips on Mechanics’ Liens, § 21. 2. That the petition for a lien was irrelevant and incompetent as evidence. It is upon its face a petition for a lien upon property of the estate of Dwight T. Parker, deceased; but after the owner’s death, a petition cannot be filed to enforce a lien upon his property. Dobbs v. Enearl, 4 Wis., 451. It states that “ the real substance of the contract between the original contractors and the owner of the premises is not sufficiently known to him [the petitioner] to describe herein,” and that notice in writing has been served “ upon the owner of said building and premises.” The person here referred to as owner of the building and premises, who contracted for the erection of the house, and upon whom the notice had been served, appears, by the language of the petition, to have been the deceased Dwight T. Parker. The only mention of Mrs. PaPker in the petition is in the statement that the petitioner is to receive for his wTork upon the building “ $3,000 to be paid in the manner stated in contract between Mary E. Parlter and Beynolds & Le-feldt.” It cannot be inferred from this, either that Mrs. Parlter is the owner of the premises, or that her contract with Beynolds & Lefeldt wras for the building of the house. The petition is likewise defective for failing to state that at the time notice was given, there was something due or to become due from the owner to the oi’iginal contractors (Tay. Stats., 1763, §4, and 1765, §11); and because it does not sufficiently set forth the contract upon which the claim is founded. Simpson v. DaVrymjple, 11 Cush., 308. It is often very difficult for a petitioner to ascertain the true description and ownership of the land on which a building has been erected. Amendments are therefore allowed in these respects. These cannot affect bona fide purchasers; but as between the petitioner and the party who has procured the erection of the building, justice requires that amendments should be allowed according to the facts. Witte v. Meyer, 11 Wis., 295; 7 id., 105; Challoner v. Howard, 41 id., 359. As to Mrs. Marker’s interest in the land, the evidence clearly shows that she and some or all of her children, adults and minors, reside on the land and in the building erected under the contract between her and Reynolds & Lefeldt. She, at least, ought to be estopped from denying her title to the land or building. But for the .purpose of this lien, possession is sufficient. It is an interest in real estate, and may be sold on execution. Demi v. Pyncheon, 3 Chand., 9; Bunker v. Band, 19 Wis., 259; Bates v. Campbell, 25 id., 616; McCoy v. Quick, 30 id., 526.