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rem, unless such conveyances are made subsequent to the attachment of such lien, and it would be under most extraordinary circumstances, hard to conceive of, if such prior conveyances were duly recorded, and notice thereof thereby given, that the holder of such mechanic's lien could assail them. I am fully persuaded that he cannot in the federal courts, by reason of this limited lien alone, undertake to bring a general creditors' bill, assailing conveyances and seeking to charge defendants individually for alleged personal fraudulent transactions. Again, while these liens must be liberally construed, the statutory provisions by which they are obtained must be strictly complied with, and the claimant thereof in the suit brought to enforce it must prove “all that is essential to the creation of the lien, and that includes proof of the commencement of the work, of its character, and its completion. The commencement of the work must be shown, for from that date the lien attaches, if at all. The character of the work must be shown, for it is not for all kinds of work that a lien is allowed. The completion of the work must be shown, for notice of claiming a lien must be filed in the recorder's office within 60 days from that time. This proof must be furnished by the party who asserts the existence of the lien.” So says Mr. Justice Field, in Davis v. Alvord, 94 U. S. 545, 24 L. Ed. 283.
The single allegation contained in plaintiff's bill asserting such lien is in these words:
“(13) Your orator is entitled to and has filed a mechanic's lien for all its said claim of $14,889.98, with interest as aforesaid, against said real estate and manufacturing plant in accordance with the laws of the state of West Virginia, and claims and is entitled by virtue thereof to a lien on said property.”
Nothing can be better settled than the principles that every bill in equity must state the right, title, or claim of the plaintiff with accuracy and clearness; that every essential to the plaintiff's title to maintain the bill and obtain the relief must be stated in the bill, otherwise the defect will be fatal; that no facts are properly in issue unless charged in the bill; that every material allegation should be put in issue by the pleadings, so that the parties may be duly apprised of the essential inquiry, and may be enabled to collect testimony in order to meet it; and that the bill must show sufficient matters of fact per se to maintain the case, and, if it be defective in this, the bill will be dismissed. Sand's Suit in Equity 10; Story's Eq. Pl. 284; Mitf. Eq. Pl., 125; Parker v. Carter, 4 Munf. (Va.) 273, 6 Am. Dec. 513; McGugin v. O. R. R. Co., 33 W. Va. 63, 70, 71, 10 S. E. 36.
Standing alone upon this single allegation and statement of fact in this bill, I have not believed plaintiff could maintain this suit to assert its claim as a mechanic's lien. This allegation states the bare fact that it is entitled to and has filed a mechanic's lien; but does not state when it filed it or where or any other essential facts showing whether it be in such form and substance as to constitute it such lien in fact. It is true that on June 19, 1906, by leave of the court, plaintiff was permitted and did file in the cause what purports to be the record of such lien relied on from the clerk's office of Monongalia county, W. Va., but this was two years after the bill was filed, after Sturgiss and his co-petitioning bank had intervened, and after original defendants had filed their demurrer to this petition going, in its nature, to the bill also. Unidentified and not referred to or brought in by any amendment either made, asked or in any way sought to be made to the bill, I cannot believe that it can be regarded as curing the defective allegations or lack of allegations therein. It would follow that if I be right in these conclusions that the bill cannot be maintained on its face to enforce a mechanic's lien, and cannot be maintained by plaintiff on the other hand as a simple contract creditor to assail the alleged fraudulent transfers, ordinarily it would seem that I would not be called on to further consider the matter. But this position is, however, so strenuously resisted by so able counsel, and the other questions involved have been so earnestly and extendedly discussed, that I feel compelled to say that, if I should be wholly mistaken in the foregoing conclusions that the bill cannot be maintained and should substantially fall on demurrer, nevertheless, that, on the merits, I do not believe the plaintiff and the intervening petitioners are entitled to the relief prayed for by it and their petition. It seems to me clear that this controversy no longer exists between the original plaintiff in interest and the defendants; that its claim has either been paid by or assigned to petitioner George C. Sturgiss; that the allegations of the original bill charging the transfer of the property of the Rolling Mill Company of America to the Morgantown Tin Plate Company to be fraudulent must fall and drop out of the case, for it is conceded that the organization of the Tin Plate Company and the transfer to it from the Rolling Mill Company of its property and assets was not only known and consented to by Sturgiss, but that all the papers and proceedings necessary to accomplish this result were either prepared or supervised by him as attorney for the parties interested in the two companies; and it is further admitted that he, by transfer from Humbert upon the organization of the Tin Plate Company, became a stockholder of the Tin Plate Company; that he consented to be one of its original incorporators, but was not finally called upon to be such. Under such condition of affairs, it being uncontroverted that he owns the plaintiff's debt, either by assignment or payment, and that this creditor alone has made these charges of fraud, it would be a matter of supererogation to cite authorities to the effect that he is estopped from maintaining himself or having his assignee maintain them for his benefit. Nor is it denied that the mortgage or deed of trust was also advised by him and prepared under his supervision and that he subscribed and took bonds to the amount of $50,000 secured thereby, with full knowledge of all the facts and conditions under which it was executed, and therefore is also estopped from further maintaining the allegations of the bill charging this mortgage or deed of trust to have been executed for fraudulent and corrupt purposes. And, finally, it is admitted that the stock of the Tin Plate Company was issued to the extent of $150,000 to the stockholders of the Rolling Mill Company, with his full knowledge and assent, if not under his direction, in payment of assets and property, transferred by the latter to the former company, a part to Humbert from whom he, Sturgiss, took part, and he is therefore estopped, either directly or through his co-petitioner bank, his assignee, from seeking to hold said stockholders personally liable for the payment of his debt by reason of the alleged fraudulent issue of this stock to them.
Under these circumstances the controversy narrows itself down to two questions upon its merits: First. Can the cause be maintained for the benefit of petitioner Sturgiss to assert a valid mechanic's lien against the property for the debt originally set up in the bill by his assignor, the Canton Roll and Machine Company? Second. Can it be maintained at his instance and for his benefit, and possibly that of other creditors represented by Corbin as the trustee of the Morgantown Tin Plate Company in the bankruptcy proceeding, to assail and set aside the sale in New York of the $100,000 of bonds deposited as collateral with the Kings County Trust Company to secure the notes of the Tin Plate Company for $21,500 borrowed money ?
Taking up the first question, there very naturally arises at the very threshold of the inquiry this question: Is it sufficiently shown in the bill, pleadings, or evidence that the machinery furnished was of the character that entitled the plaintiff to a lien? If it can be asserted at all, it must be by virtue of section 3111 of the Code of West Virginia of 1906, which reads as follows:
"Every mechanic, builder, artisan, workman, laborer, or other person, who shall perform any work or labor upon or furnish any material or machinery for constructing altering, repairing or removing a house, mill, manufactory, or other building, appurtenances, fixtures, bridge, or other structure, by virtue of a contract with the owner or his authorized agent, shall have a lien to secure the payment of the same, upon such house or other structure, and upon the interest of the owner in the lot of land on which the same may stand or to which it may be removed."
It will not be contended by any one that this statute can be construed to give a lien to the man who may sell, under contract, the furniture that may go into a house, nor can it be any more seriously contended that this lien can be taken for tools and machinery to be operated in the house, unless they become part and parcel of the structure itself. There is no substantial evidence that I recall in this case that shows that this machinery furnished by plaintiff was to be attached to and made a part of the realty so as to authorize this lien. It might naturally be assumed that some of the heavy machinery was so attached, and, on the other hand, the presumption arises just as strongly that some of it was not to be so attached. For example: The contract provides for twelve pairs chilled rolls, six pairs to be delivered with the mills, balance when required. Manifestly to one unacquainted with these mechanical details it would be assumable that, whether the "mills” were to be incorporated with the structure or not, the rolls could not be, because they could be supplied independently at any time, and as needed. I confess myself in entire ignorance touching this class of machinery, and it certainly cannot be contended that courts must take judicial knowledge of such matters. On the contrary, the burden is upon the person asserting such lien fully to prove the facts and establish the character of the machinery or work; for it is not for all kinds of such that a lien is allowed, as decided by Davis v. Alvord, supra.
In Van Stone v. Stillwell & Bierce Mfg. Co., 142 U. S. 128, 12 Sup. Ct. 181, 35 L. Ed. 961, Mr. Justice Lamar says:
"This lien is a creature of the statute, not recognized at common law. It may be defined to be a claim created by law for the purpose of securing a priority of payment of the price and value of work performed and materials furnished in erecting or repairing a building or other structure, and as such it attaches to the land as well as the buildings thereon. 15 Am. & Eng. Enc. Law, 5. Now, it is not the contract for erecting or repairing the building which creates the lien, but it is the use of the material furnished and the work and labor expended by the contractor, whereby the building becomes a part of the freehold, that gives the materialman and laborer his lien under the statute."
The same principles and conclusions are deducible from the rulings of the Circuit Court of Appeals of this circuit in the cases of Liberty, etc., B. & L. Co. v. Furbush & Son Machine Co., 26 C. C. A. 38, 80 Fed. 631. Withrow Lumber Co. v. Glasgow Inv. Co., 42 C. C. A. 61, 101 Fed. 863, both of which cases arose under the Virginia statute very similar to ours. In the latter case it was attempted, as in this case, to set up an “equitable lien” independent of the mechanic's lien
but the court expressly holds no such lien has existence at common law or equity except by statute for material or labor furnished. In this case both the validity and existence of this lien were denied and put in issue by the answers. It would therefore appear that the case of Central City Brick Co. v. Norfolk & W. R. Co., 44 W. Va. 286, 28 S. E. 926, is decisive of the point that the mere declaration of the lien on record was not sufficient proof. The Supreme Court of Appeals of this state, without dissent, therein held:
"It is not sufficient to file with such a bill the account filed with the clerk of the county court for the purpose of creating such lien, but the fact that the material was furnished to the contractor, to be used in the construction of the house, in pursuance of a contract with such contractor, must be alleged and proved before such lien will be enforced against the property.”
It may be said that this case applies to a case where the material was furnished to a contractor, and not direct to the owner or his vendee as in this case. It is impossible, however, to see why any less proof should be required of the claimant as against the owner building by a contract than should be required of him as against other lienors whose debts may be wholly lost if his be maintained.
But another question comes in this matter, and that is whether the lien claimed in this case was secured by a strict compliance with the requirements of the statute. The allegations of the two answers of the original defendants and of Corbin, the trustee in bankruptcy, are fully sustained by the evidence. Briefly, these facts may be stated to be: That, by the terms of the contract, plaintiff was to furnish, together with other machinery, six pairs of rolls unconditionally, and six additional pairs when required by the purchaser. The first six were furnished, and plaintiff was substantially notified not to furnish the other six pairs. When the plaintiff had furnished all the machinery unconditionally required by the contract, it undertook to file in the clerk's office a declaration of mechanic's lien, which was duly recorded, and suit was brought to enforce it, when it appears to have been discovered that this declaration had been filed 61 days after the last item had been delivered, 1 day too late, and that other defects were apparent on the face thereof. Thereupon plaintiff dismissed its suit, and neariy a year afterward it shipped to the Rolling Mill Company at Morgantown these six extra rolls, which were never delivered and could not be delivered to the Rolling Mill Company, for it was dissolved and had no existence, were not delivered and could not be delivered to the Tin Plate Company, because its mill, plant, and property was in custodio legis in the bankrupt court.
As a result the six rolls remained undelivered in the railroad yards at Morgantown. Within 60 days after this shipment of these last rolls plaintiff filed and had recorded the declaration of lien now in controversy.
Under these circumstances, I do not believe this lien to be valid for several reasons:
First. Because it was not filed within the time required by the statute. It is earnestly insisted by counsel that:
"A contractor is entitled to one valid mechanic's lien, and, if the first one filed is faulty and defective, he may file another and perfect one within 90 days (by our statute 60) from the time the work is finished.”
"When a contractor files a perfect mechanic's lien for work done and materials furnished, as required by statute, such lien is valid, not only against the party with whom the contract was made, but also against its assignee, who takes with notice and who assumes to pay its creditors itself, nor will the fact, if the contractor has accepted money due on his contract from the assignee, affect the validity of the lien against the assignor.”
And the case of Williams v. Chicago, etc., Ry. Co., 112 Mo. 463, 20 S. W. 631, 34 Am. St. Rep. 403, is cited.
Grant these propositions without a moment's hesitation, wherein are they applicable to this case? A contractor is entitled to one valid mechanic's lien if taken within the 60 days after he has finished the work or ceased furnishing the material. If he is not satisfied with his first declaration of lien, or finds it faulty, he may file another within that 60 days. I am not sure but that he may file as many as he desires within such time, and, when he institutes his suit to enforce his lien, may rely on one or all of these declarations so filed. An examination of this Missouri case, so confidently relied on, shows that the contractor filed his faulty declaration on March 13, 1888, and his valid one on April 16, 1888. There is an error in stating this date on page 427 of the report of the case (112 Mo. 20 S. W. 631) as given in 34 Am. St. Rep. It is there given as April 16, 1889, and this may have misled counsel. By turning back to the statement of facts at the top of page 409, and also to page 429, this error is apparent. The date fixed by the contractor upon which he finished work was January 19, 1888, so that both the faulty and valid lien were filed within the period of 90 days provided by the statute. The whole question turns upon the words of the statute:
“Within sixty days after he ceases to labor on, or furnish material or machinery."
Who determines the date of that "ceasing"? The contractor, and he must fix it correctly, at his peril, with no qualifications or reservations, and he must swear to it. The whole proceeding up to the bringing of the suit to enforce is purely ex parte, and, being so, it must be done