Dittmer v. Bath

Hooker, J.

The complainant erected a building upon premises owned by Bath, finishing the same upon December 10, 1893, his contract having been made on October 2, 1893. On December 1, 1893, and while the complainant was at work under his contract, Schenck took a mortgage upon the premises. On January 30, 1894, complainant filed a lien upon the premises for $373. A stipulation was filed at the hearing, dated March 30, 1896, signed by the solicitor of the defendant Bath, admitting the regularity of all proceedings to enforce the lien, and consenting to a decree for the sum of $333, with interest from February 1, 1894, and costs; and a decree was entered accordingly against Bath. We discover no evidence that the complainant had served upon the landowner, Bath, a statement under oath of the number and names of the subcontractors and laborers in his employ, and of those furnishing materials, and the amount due or to become due to them; and the decree indicates that there was no such testimony, as it contains a finding that the service of the same was waived by defendant Bath. The court held that the mortgage of the defendant Schenck was a prior incumbrance to complainant’s lien, and the decree required the sale to be made subject to the mortgage, and costs were awarded to Schenck against the complainant, who has appealed.

The briefs discuss but one point, viz., whether the failure to serve the notice required by section 4, Act No. 179, Pub. Acts 1891, was a sufficient ground for the holding of the circuit judge that the mortgage should have priority over the lien. We have held that a failure to comply with section 4, Act No. 179, Pub. Acts 1891, is fatal to proceedings to enforce alien. Wiltsie v. Harvey, 114 Mich. 131 . This is upon the ground that compliance with such section by serving a sworn statement must be shown, or at the least waived, to warrant the commencement of an action or proceedings to enforce a lien. Martin v. Warren, 109 Mich. 584 ; Barnard v. McLeod, 114 Mich. 73 . Under section 9 of the lien law, as amended by Act No. 199, *573 Pub. Acts 1893, a lien terminates at the expiration of six months after the statement or account is filed with the register of deeds,- unless proceedings to enforce the same be commenced within that time. In the case before us, there was no service of the statement within such period, and, as the suit brought before the expiration of the time was prematurely brought because of the nonperformance of the condition precedent, the lien was at an end as to the defendant Schenck, who had a right to avail herself of any irregularity destructive to complainant’s lien, as she was directly benefited thereby. This was held in the case of Wiltsie v. Harvey, supra. The alleged waiver was not made until March 30, 1896; and if this was effective to support the decree against the defendant Bath, which we do not find it necessary to determine, as he has not appealed, it cannot have such effect against defendant Schenck. Wiltsie v. Harvey, supra.

The decree is affirmed, with costs.

The other Justices concurred.