McCREA v. CRAIG et al., 23 Cal. 522

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action to enforce a mechanic’s lien. The building was owned by the defendant Allen. Craig was the original contractor who agreed to construct it; and the plaintiff furnished materials for its construction between April 6th and June 28th, 1862. On the third day of July, the plaintiff filed a notice of his demand and lien in the Recorder’s office, and within five days thereafter gave Allen notice thereof; and July 3d, he presented his account to Craig, who admitted in writing thereon that it was correct.

On the seventeenth day of July, 1862, the plaintiff again gave Allen notice of his hen, in accordance with the provisions of the Act of 1862—the sum of $2,000 then being due and unpaid under the contract from Allen to Craig; and also filed an account of his demand and hen in the Recorder’s office. The building was completed August 20th, 1862. Allen demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and that it did not show that the plaintiff had any hen upon the property.

The Court sustained the demurrer and rendered final judgment for the defendants, from which the plaintiff appeals. On the twenty-sixth day of April, 1862, a law was passed in relation to hens of mechanics and others, which took effect June 25th, 1862, the last

section of which repealed ah prior laws upon the subject; but the twenty-fourth

section provides that “ Nothing contained in this act shall be deemed to apply to or affect any lien heretofore acquired.” (Stat. of 1862, 384.) Although the lien in this case is created by and depends upon a compliance with the terms of the statute, yet it is a favored lien, because the very property upon which the lien attaches has been created by the labor or materials furnished by the person claiming the lien.

The lien virtually commences when the labor or materials are begun to be furnished; and although such lien can only be enforced by filing and recording the proper notice in the Recorder’s office, and commencing suit and performing the other acts required by the statute within the proper time, yet all these acts relate to, and the lien is deemed to have accrued at the time of the commencement of the work, or the beginning to furnish the materials. (Tuttle v. Montford, 7 Cal. 358; Soule v. Dawes, Id. 575; Crowell v.

Gilmore, 13 Id. 54.) The evident intention of Sec. 24 of the Act of 1862, was to save and preserve to the claimants all rights and liens acquired under the preexisting laws which were then repealed, and which, but for such saving clause, would have been liable to be lost by such repeal. The fair and reasonable construction of the averment in the complaint is that the plaintiff commenced furnishing the materials for the building on the sixth day of April, and continued furnishing the same from that time up to June 28th.

Although he did not file any notice of lien until after the new law went into effect, yet his lien is to be deemed to have been acquired, and his notice will relate back to the time he commenced to furnish the materials; and such lien comes properly within the saving clause of the statute. After the new statute went into effect, all subsequent acts and proceedings relating to the lien or its enforcement were governed by and must have been in accordance with its provisions.

The averments of the complaint show a substantial compliance with the new statute on the part of the plaintiff; and the complaint sets forth, therefore, a good cause of action. It follows, that the Court erred in sustaining the demurrer. The case of Donahy v. Clapp (12 Cushing, 440) is essentially different from the present, as that was evidently a new statute enacted where none had existed before; and not, like the present, the enactment of a new and revised law, saving previously-acquired rights, under a former statute upon the same subject.

The judgment is reversed and the cause remanded, with directions that the defendants answer the complaint within ten days after service on them of notice of the filing of the remittitur in the Court below.