ARK.] GEISREITER V. STANDARD LUMBER COMPANY. 893 GEISREITER V. STANDARD LUMBER COMPA*Y. 4-3082
Opinion delivered September 25, 1933. 1. MECHANICS' L1ENS—NOTICE.—Where a building was erected by a lessee, the lessors consenting that it should be the lessee's property, it was subject to a materialman's lien. 2. MECHANICS' LIENS—DESCRIPTION OF PROPERTY.—Affidavits for ma-• terialmen's lien, describing the property as a building situated on a certain block, held sufficient. 3. MECHANICS' LIENS—TIME FOR FILING.—The time for filing affidavits for liens for materials furnished under open running account runs from the date of the last debit item. on the account., Appeal from Jefferson Chancery Court ;* Harvey R. Lucas, Chancellor ; affirmed. M. Danaher and Palmer Danaher, for appellant. . Rowell & Rowell, W. B. Alexander, M. L. Reinberger and Bridges, McGaughy & Bridges, for appellee. - MCHANEY, J.' Under date of June . 16, 1931, appellants, Mary''' . G. Miller and Frank W. Berry, •as trustees for appellant S. Geisreiter, leased to K. M. Hall a. la or parcel of land 50 feet north and south by 120 feet east and west, in the northeast corner of block 49; Dexter Harding's Addition to Pine Bluff, Arkansas, at a monthly rental of $30, payable July 1, 1931, and on the first day of each month thereafter for a term of five years. The lease contained these clauses, among others : ." The lessee agrees to erect a building upon the land, to be used by him for the sale of ice cream, frozen custards, drinks, cigars, cigarettes and kindred lines, and not to use the premises for any . other purpose, ,withont written agreemen( of lessors. The lessee shall have the right, within thirty days after the expiration of this lease,
894 GEISREITER V. S L CCOMPANY. [1187 •• 4 . - or its terMination otherwise, to reni oYe the building, provided all rent'due at the time shall have been. paid." Hall entered into possession.,and immediately began the erection of the building mentioned in the lease, pur-, chasing certain building material and supplies from ap7 pellees, which were actually used in the constraction thereof. He failed to pay appellees in fuTfor the material so purchased, and within 90 days from the date of the last item on each of their respective accounts they filed in the office of the circuit cleik affidavits for liens on the building and leaSehold , interest in-the land, describing the property in the affidavit of Standard Lumber Company. as "leasehold and building situate on northeast corner of block 49,. Dexter Harding's Addition," etc., and in the affidavit of Taylor Electric Company aS , 'northeast corner 50 by 120 feet of block 49; DeXter itafdiiig's Addition, and the building located thereon." No. complaint is made of the description of the land in the affidavit of the other appellee, Barton-iviansfield .■ Company. Thereafter,.on February 2, 1932, appellees, Standard Lumber Company and Taylor . Electric . Company, filed, suit in the chancery court 'to foreClose /their liens on the building, the leasehold , and the land.' Barton-Mansfield Company intervened and sought a foreclosure of its lien. Appellants defended on the grounds hereafter discussed. Hall defaulted in the payment of rent, and on-January 5, 1932; appellants brought .an unlawful. detainei :action. in the circuit court against him for possession of the property and for judgment for the rent due, which r.esulted in a judgment in•their favor for possession and $120 for rent, and interest on April 20, 1932. Appellees were not made parties to this proceeding, although their affidavits for liens were on file in the proper office. The decree in'this case . gave judgment against Hall in faVoi a.ppellees for their respective claims which was declared to be al . ien u _ p on the building onlY, prior to the rights of appellant, :' No lien was fixed upon the leasehold or upon the land itself: This appealehallenges the rights of appellees to a lien On the building.
ARK.] GEISREITER v. STANDARD LUMBER COMPAN Y. 895 •The relationship between appellants , and Hall was not that of owner and contractor, as appellants contend, but only that .o . f . lessors and lessee, and we fail to see how they can get any comfort out of the case of People's Building & Loan Ass'n v. Leslie,Lumber Co., 183. Ark. 800, 38 S. w. (2d) 759. While it is trule that we there held that the relationship betieen the ' owner, of property and the , purchaser thereof under an executory contract of sale and purchase, .requiring the Purchaser to make certain improyements, was that of owner and contractor and not principal and agent (See also WilckvOod Amuse4neitt Co. v. Stout Liimber CO., 178 Ark. 977, 12 S. W. (2d) 911), it iS alsotine that we held in the saure case that, "where a contract f6r sale of land stipUlated that certain improvementS Should be made, a materialMan's lien Was Superior to the vendor's lien for the Purchase Money," and that he could not defeat such lien by a stipulation that the vendee should riot dreate any lien on the property.i Syllabi 4-and -5i' - Here, as we construe the lease, the lessors did not require the lessee to erect the building in question, but consented or stiPtlated that Hall Might dO so. The building Was to be Hall'S wi-th 'the right to 'ternove upon termination 'Of the le'6i6 with . all• rents paid. This . 6ase is more 'nearly like' that of ildivkins v. Faubel; 182 Ark. -304; 31 S. W. (2d) 401; where we held that the lessor, by merely consenting that the lessee may make certain improvements, does not subject the fee to a mechanic's .lien, but only the , leasehold : estate,. In .other words,: in order to,reack the; fee, the contract must be with the owner or his agent. .Appellees had no contract . with the owners of the fee, appellants, but: only with their lessee, who was not their agent. Therefore no notice to appel, lants was necessary, as the fee was not involved. • Awellants also contend that the descriptions in the affidavits of two appellees (the lumber .company and the electric company) were defectiye. , We cannot agree. In Brown T. Turnage Hardware Co., 181 Ark. 606, 26 S. W. (2d) 1114, the late Chief Justice HART, speaking for the cOurt, said: "We have frequently held that the Statute
896 GEISREITER V. STANDARD LUMBER COMPANY. [187 should receiVe a liberal construction to effectuate its remedial purposes. All that is necessary is that a person of ordinary understanding should be able to find and recognize the premises intended by the description. The mere fact that more land was embraced in the claim filed by appellee under the statute and in the decree rendered by the court will not of• itself invalidate the lien; but it will be good to the extent recognized by the statute. It is sufficient . that the description points out and indicates the premises so that, by applying it to the land, the structure inio which the materials are placed can be found and identified. Arkmo Lk. Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901 ; Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353 ; and Georgia State Savings Ass'n v. Marrs, 178 Ark. 18, 9 S. W. (2d) 785." A comparison of the descriptions in the affidavits with that in the lease shows that no person could be mistaken about the identity of the property, or at least "a person of ordinary understanding should be able to find and recognize the premises intended by the description." We therefore hold that the descriptions . were sufficiently definite, and, as said in the case last cited, "to hold otherwise would subject substance to form, and deny the lien to perions clearly entitled thereto under thd statute." It is next urged that the affidavits for liens were not filed in time to cover all the items on the respective accounts. There is no evidence in this record that each separate purchase was made ona . separate contract. The accounts themselves show them to be open running accounts, and all the material and supplies for which liens are claimed were purchased within a short space of time. For instance, the Standard Lumber Company furnished material from June 17 to July 2, a period of 15 days, and something was furnished nearly every day. The Electric 'Company furnished material and labor from June 22 to October 6, and its affidavit for lien was filed October 19, 1931. Barton-Mansfield Company sold material from June 19 to August 12, and its affidavit was filed Septem-ber 29, 1931.
Under such conditions we have many times held that the 90 days begins to run from the date of the.last debit item on the account. ;Ferguson Lumber Co. v. Scriber; 162 Ark. 349, 258 S. W. 353; Whitener Purifoy, 177 Ark. 39, 5 S; W. (2d) 724; Plcattels' . Cotton Oil:Co. v. Galloway, 170 Ark. 712, 288 S. W. 999. • Other , incidental questions are argued for a reversal, Which we find without merit. Since there is no cross-appeal froth the refusal Of the court to declare a lien on the leasehold intereSt, we do nOt discuss this matter: , We find no reversible erior, , sO ihe dedree muSt be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.