the word ‘owner,’ as used in the Mechanic’s Lien Law, includes a purchaser in possession of real property
How later courts described this case
- the word ‘owner,’ as used in the Mechanic’s Lien Law, includes a purchaser in possession of real property
Written by the judges who cited it.
The opinion
Bebearing denied and former opinion modified December 20, 1927.
On Petition for Behearing.
( 262 Pac. 263 .)
This is a petition for rehearing. In onr former opinion, we held that, under Section 10193, Or. L., a mechanic’s lien upon any building or other improvement shall be preferred to any lien, mortgage or other encumbrance attaching to the land subsequent to the time when the structure was commenced “or the materials were commenced to be furnished and placed upon or adjacent to the land,” and to all prior liens, mortgages or other encumbrances upon such lands as well. A careful reading of the sections embraced within the Mechanic’s Lien Law will support our holding. We believe that the petitioner has misunderstood our meaning.
Petitioner asserts that we overlooked one important question in our former opinion. We concede that, in our previous consideration of this cause, we did not determine the right of plaintiff to a personal judgment against Manary. The record shows that Manary was not a personal debtor to either of the plaintiffs. However, certain of his real property is held subject to a lien, by virtue of the statutory lien given to those who supplied material or labor for the construction of certain improvements thereon. The mere establishment of a lien upon Manary’s property does not warrant a personal judgment *369 against him as owner, because there was no contractual relation between him and the lienor: 19 Stand. Proced., p. 729; 40 C. J., §740, subd. 4. In Duby v. Hicks, 105 Or. 27 ( 209 Pac. 156 ), this court, speaking through Mr. Justice Band, said:
“The lien claimed was purely a statutory lien, and the sole relief sought was its foreclosure.”
That that plaintiff was entitled to no further relief is settled law in this jurisdiction. The foregoing language was quoted with approval in McCormack v. Bertschinger, 115 Or. 250 ( 237 Pac. 363 ), where this court again wrote:
“The plaintiff was not entitled to a judgment against the defendant personally, but only to the foreclosure of the lien and a sale of the property in satisfaction thereof.”
There are many authorities in support of this proposition. See 40 C. J., p. 499, note 84. Shaw v. Spencer, 57 Wash. 587 ( 107 Pac. 383 ), is much in point. In that case, the Supreme Court of Washington held that, where a lessor did not personally contract for certain improvements made upon the leased lands by his lessee, he was not personally liable therefor, although he was by his conduct estopped from asserting the exemption of his interest from liens for material furnished in making the repairs.
The decree appealed from is modified in accordance with the above. With this addition, the original holding of this court will stand.
Behearing Denied. Former Opinion Modified.
Bossman, J., did not participate in the consideration of this case.