McFeron v. Doyens

¶1Opinion by

¶21. Defendant contends that the notices filed are insufficient to create a lien, in that they are not in the form of notices, do not expressly declare that liens are claimed, and that they do not contain a sufficient description of the property for identification. The notices of lien are in the form of affidavits stating the facts, one being headed, “Lien. R. T. McFeron ag. John Doyens,” and the other is in the same form. The statute under which the lien is claimed (Section 7420, L. O. L.) specifies no form of notice. It only requires that the claimant shall “file with the county clerk of the county … a claim containing a true statement of his demand, after deducting all just credits and offsets, with the name of the owner, or reputed owner, if known, and also the name of the person by whom he was employed … and also a description of the property to be charged with said lien, sufficient for identification.” The lien notices in this case contain a statement of facts as to each of these requirements. They were filed and recorded in the mechanic’s lien record and within the time required. The description of the property to be charged with the lien as described in the notice is “a certain sawmill upon the property of R. M. Seism and Claybourn Steel about four miles southwest of Mt. Angel, Oregon, and reputed to be owned by John Doyens.” As between plaintiff and defendant John Doyens this is a sufficient description to identify it. As said in Kezartee v. Marks, 15 Or. 529 (16 Pac. 407), if there is enough in the description of the locality and other peculiarities of the building to identify it — to point it out with reasonable certainty — the statutory requisition is complied with.

¶32. In the absence of subsequent lienholders or purchas*369ers, the description is sufficient, and will enable one familiar with the location to point out the property.

¶43. Defendant seeks to establish that the mill is a portable one. Whether it is or not we deem immaterial, as plaintiff does not ask relief against the land. The statute gives a lien upon any building, machinery, or structure, and it is not essential that it be attached to or made a part of the realty. It is held in Kezartee v. Marks, 15 Or. 529 (16 Pac. 407) that, where the title to the structure and the title to the land are in different persons and the land is not described, the notice specifying the structure, the lien may attach to it but not to the land.

¶54. But even if the mill had been what is known as a portable mill yet when erected upon the land and imbedded in brick and mortar foundation, it may become a fixture. Washburn v. Inter-Mountain Min. Co., 56 Or. 578 (109 Pac. 383).

¶65. Again, defendant contends that, as the assignment by Lee McFeron of his claim and lien was verbal, it is insufficient to transfer the title to the lien to plaintiff. Although the courts of some states hold that the lien, being an interest in real estate, can only be transferred by a writing, it is settled in this State that a mortgage on real estate is only an incident of the debt, and that the transfer of the debt carries with it the security. Roberts v. Sutherlin, 4 Or. 219; Barringer v. Loder, 47 Or. 223, 229 (81 Pac. 778); Boisot, Mechanics’ Liens, § 12, states that, as in the case of a mortgage so with a mechanic’s lien, an assignment of the debt or account secured operates as an assignment of the lien. And it is also the rule in this State that any debt or claim may be transferred by parol which operates as an equitable assignment and transfers all the interest of the assignor. Moore v. Miller, 6 Or. 254 (25 Am. Rep. 518); First Nat. Bank v. McCullough, 50 Or. 508, 514 (93 Pac. 366: 17 L. R. A. [N. S.] 1105: 126 Am. St. Rep. 758); Trueblood v. Shellhouse, 19 Ind. App. 91, 95 (49 N. E. 47). The assignment by parol was sufficient.

¶76. The evidence is not specific as to whether the removal and erection of the mill on the Seism and Steel place was done for L. M. McFeron or John Doyens, but the allegation is that it was for Doyens, and the testimony for plaintiff tends to sustain that allegation. McFeron did not purchase the mill until February 15, 1909, at which time it had been moved and rebuilt to such an extent that it could be used in cutting lumber for the erection of the mill building. It is described in the contract as the mill situated on the Seism and Steel place, and it appears that Doyens made the payments to plaintiff and Lee McFeron that are credited on the claim, and the conclusion is justified that the work was done for defendant Doyens. L. M. McFeron being in charge of the work he is by statute made the agent of Doyens which connects the laborers with the owner of the property by contract.

¶8The other errors assigned are without merit. The decree is affirmed. Affirmed.