The bill of complaint in this case alleged:
*Page 661"That at the request of Herman Zeigler, contractor, he (the complainant) furnished a large amount of lumber, millwork, cement, nails, plaster and hardware to be used in the erection of two dwelling houses situated in the First Election District of Harford County, Md., at Otter Point, and that there is now due and owing to your orator, for the material so furnished, the sum of $1,184.18; that the said Herman Zeigler used said material in the erection of two new dwelling houses, and at the time of the delivery of the first material by your orator, and for some time thereafter, Ernest A. Isberg and Eleanor L. Isberg, his wife, were the owners of the property on which both houses were under construction and erected; that subsequently thereto and on the 22nd day of November, 1922, Ernest A. Isberg and Eleanor L. Isberg, his wife, by deed conveyed a certain lot of ground upon which one of said houses was erected to their daughter, Catherine May Isberg; *Page 660 that after the delivery of part of said material your orator discovered that the said contractor, Herman Zeigler, erected one house for Eleanor L. and Ernest A. Isberg and the other for May Isberg; that as to what portion of the material furnished by your orator and described in the lien claim was used in each of the respective houses your orator is unable to say, except through testimony of said contractors, Herman Zeigler, or some other expert; that the said sum of money, so as aforesaid due and owing to your orator for material furnished by him as aforesaid, being due and unpaid, he did on or about the 17th day of August, 1923, file in the clerk's office of the Circuit Court for Harford County a claim for a lien under article 87 of the Revised Code of Maryland, against the said two dwelling houses, the ground upon which they are erected, and so much other ground immediately adjacent thereto, and belonging in like manner to the owners of said dwellings as may be necessary for the ordinary and useful purpose of said buildings, as will appear by reference to a duly certified copy of said lien claim, herewith filed as part hereof, marked `Exhibit A'; that the first material was delivered on October 4th, 1922, and the last on July 2d 1923, and that before filing said lien and within sixty days after the last material was furnished, plaintiff gave notice in writing to the said Catherine May Isberg, Ernest A. Isberg and Eleanor L. Isberg, his wife, the owners or reputed owners of said dwelling houses and grounds, of his intention to claim the benefit of said mechanic's lien law; that the said Ernest A. Isberg and Eleanor L. Isberg, his wife, having paid said contractor for the erection of the dwellings which they retained and the said contractor having paid plaintiff "enough money to cover all material that went into said dwelling, and the said Catherine May Isberg being indebted unto the said contractor, Herman Zeigler, for the erection of the dwelling of which she is the owner, to the extent of $1,189.65, your orator made out his bill in the name of Catherine Isberg."
The prayer of the bill is for a decree for the sale of the property described in the lien claim, or so much thereof as may be necessary, and for the distribution of the proceeds "among your orator and the parties hereto"; that plaintiff's claim be paid with interest, and for further relief.
Exhibit "A," filed with the bill, is as follows:
"Lewis C. Caltrider, trading as L.C. Caltrider and Sons, claim the sum of eleven hundred and eighty-four dollars and eighteen cents, with interest thereon from the 2nd day of July, 1923 to be due him, against those two frame dwellings or buildings situated in said county two stories in height, and against the ground covered by the said buildings and so much other ground immediately adjacent thereto, and belonging in like manner to the owner of such building as may be necessary for the ordinary and useful purposes of said buildings, the whole of which ground is described as follows: All those lots or parcels of ground as designated upon the plat of the Willoughby Beach Co. and recorded among the Land Records of Harford County in Land Records Liber J.A.R. No. 139, folio 499 etc. and known as lots Nos. 1 and 2, sec. 6, and lots Nos. 1, 2, 3, 4 and 5, sec. 13, being the same lots of ground which were granted and conveyed by the Willoughby Beach Co. to the said Ernest A. Isberg and Eleanor L. Isberg, his wife, by deed dated September 7th, 1912, and recorded among the aforesaid Records in Liber J.A.R. No. 137, folio 439, etc. And also all that lot or parcel of ground in the First Election District of Harford County and designated upon the plat of the Willoughby Beach Co. and known as lot No. 2 in section 6 as is mentioned or referred to in a deed dated November 2d 1922, and recorded among the Land Records of Harford County in Liber D.G.W. No. 181, folio 17, etc. was conveyed by Ernest A. Isberg and Eleanor L. Isberg, his wife, to Catherine May Isberg, of which said ground, and the buildings and improvements thereon, the said Ernest A. Isberg and Eleanor L. Isberg and Catherine May Isberg, at the time of furnishing the work and materials hereinafter *Page 662 mentioned were the owners or reputed owners. The said claim being for work done and material furnished by the lienor for or about the erection and construction of the said buildings at the instance and request of Herman Zeigler, the contractor thereof at the particular times, and of the nature or kind and amount, and for the prices set forth in the bill of particulars hereto annexed, and which work has been finished and materials furnished within less than six months before the filing of this claim. And the said lienor duly apportions the sum of eleven hundred and eighty-four and eighteen one-hundredths dollars against the buildings above described.
"Wherefore the said Lewis C. Caltrider, trading as L.C. Caltrider and Sons, request the Clerk of the Circuit Court of Harford County to file and record this claim as a lien as well against the said lots of ground and buildings thereon as against the said Ernest A. Isberg and Eleanor L. Isberg, his wife, and Catherine May Isberg as the owner or reputed owners thereof, agreeably to the provision of the Code of Public General Laws, Article 63, entitled `Mechanic's Liens.'
"Gwynn Nelson, "Attorney for Lienor.
"L.C. Caltrider Sons, "Lienor."
The bill of particulars annexed to the exhibit is headed:
"Bill of Particulars.
"C. P. Phone, 26.
"L.C. Caltrider Sons, Dealers in
"Hardware, Feed, Fertilizer, Seeds and General Supplies, All Kinds of Farm Implements, Lumber and Mill Work.
"Sold to Herman Zeigler, Acc. Miss Catherine Isberg.
"Terms: Material for two houses at Otter Point, Md. "Oct. 4 — 6,500 ft. T G Roofers $247.00."
Here follows a list of items with dates of delivery and prices, amounting to $3,402.03; the last being on July 2d 1923 *Page 663 ; and itemized credits amounting to $2,217.85, leaving a balance of $1,184.18.
The claim was recorded on August 17th, 1923; the exhibit being a certified copy.
Defendants demurred to the bill of complaint, and assigned three grounds, viz:
1. That no cause is shown for equitable relief. 2. That it does not appear whether the alleged contract for the erection of the two dwelling houses mentioned in the bill was a joint contract or a several contract. 3. That plaintiff has not shown how much is due on each dwelling house.
The court sustained the demurrer and dismissed the bill of complaint. The case comes up on an appeal from that order.
In the opinion filed by the learned chancellor the following reasons are assigned for his conclusion: 1. Insufficiency of description of the property. 2. Failure to apportion the sum claimed. 3. Joint demand against both owners without any statement as to whether the houses were erected under a joint contract for both, or under separate contracts for each.
The first reason is not in our opinion valid. The claim as filed describes several lots by numbers designated upon a plat duly recorded among the land records of Harford County, the liber and folio being given, and also refers to the deeds by which they were conveyed. It was not necessary to state specifically that they were contiguous lots, and the fact that they may have contained more land than was necessary does not affect the validity of the lien. Provision is made by sections 5, 6, 7 and 8 of article 63 of the Code for having proper boundaries fixed on proper application by the owner both before and pending proceedings for the enforcement of a mechanic's lien and, if he fails to avail himself of these provisions, he cannot avoid the lien merely because too much land is claimed. Fulton v.Parlett, 104 Md. 70.
The second reason is also invalid, assuming that the right to claim a lien attached while the lots on which both of the houses were built belonged to the same persons. Miller v. *Page 664 Barroll, 14 Md. 183. A failure to apportion a claim does not defeat the claim, as section 21 provides as the only penalty for failure to make such apportionment that "otherwise such claim shall be postponed to other lien creditors." Fulton v. Parlett,supra.
And the bill expressly alleges that "at the time of the delivery of the first material * * * and for some time thereafter, Ernest A. Isberg and Eleanor L. Isberg, his wife, were the owners of the property on which both houses were under construction and erected," and that the conveyance to Catherine May Isberg of the lot on which one of the houses was being erected was not until November 22d 1922, nearly two months after the buildings were begun; and it appears from the bill of particulars filed with the claim that prior to that conveyance the bulk of the materials had been actually delivered.
In this connection it is appropriate to notice an additional objection urged in his brief by counsel for appellee, that the lien claim does not set forth that appellant's contract with the contractor was entire and indivisible, or that there was an intention from the beginning to furnish all the material that would be required by the contractor. A similar objection was disposed of in Trustees etc. v. Heise Co., 44 Md. at p. 469. There it was said by this Court through Judge Alvey:
"The account, as stated and filed with the claim for lien, * * * shows that the materials were continuously furnished within the period stated (between April 3rd, 1872, and February 14th, 1873), during the progress of the building. The items are very numerous, and deliveries were made at short intervals of a few days, as the materials were wanted at the building; and this course of dealing continued during the entire period covered by the account.
"The lien law * * * speaks of the contract for furnishing work or materials to the builder, or other person than the owner; but we do not understand from this that it is incumbent upon the claimant to establish the fact that there was *Page 665 an express antecedent contract made with respect to the exact quantity of work or materials to be done or furnished by him. In the absence of evidence of such express contract, the character of the account, the time within which the work was done or the materials were furnished, and the object of the work or materials, may afford proper grounds for the presumption that the work was done or the materials were furnished with reference to an understanding from the commencement that such work or materials should be done or furnished, if required by the builder; and in such case, it is from the last items in the account that the notice, and the time within which to take the lien, should date. If this were not so, in every case where there is no express contract, the mechanics or material man would be under the necessity of taking several liens during the progress of a single building."
The above quotation applies to the facts of the present case as they appear from the bill and exhibits. Here the materials were furnished continuously at intervals of a few days from October 4th, 1922, to July 2d 1923; the period covered being about nine months. See also Maryland Brick Co. v. Dunkerly, 85 Md. at p. 210.
Much that has been said in discussing the chancellor's second objection applies to the third. As the lots on which both the buildings were erected were owned by the same persons at the time the contract for the delivery of the goods was made and the bulk of the materials were delivered; and as we have held that the contract was continuous and the lien attached as to the entire bill as of the time of this single ownership (see Miller v.Barroll, supra; Fulton v. Parlett, supra; Maryland Brick Co. v.Dunkerly, supra; Same v. Spellings, 76 Md. 341) it was immaterial whether there was as between builder and owners a joint contract for both houses, or a separate contract for each.
Nor do we find any insurmountable difficulty in the use of the words "Acc. Miss Catherine Isberg," after the words "sold to Herman Zeigler," and before the words "materials *Page 666 for two houses at Otter Point, Md.," in the bill of particulars attached to the lien claim." If necessary to make the bill of particulars consistent with the lien claim to which it is attached, and which expressly refers to it, as containing an itemized statement of the materials furnished, the words "Acc. Miss Catherine Isberg" should be treated as surplusage. With a very much less liberal provision for amendment than is contained in section 41 of article 63 of the Code (which is probably the most liberal to be found anywhere in our statutes), any court would permit those words to be stricken out. Indeed nothing in the bill of particulars except the items of materials, dates, and prices are necessary to make the claim complete.
The reason for inserting those words is made perfectly plain by the bill of complaint, and even without that explanation, no one examining the record, and reading the entire lien claim as filed, could suppose that all the materials mentioned in the bill of particulars, said to have been furnished "for two houses at Otter Point, Md.," were for the account of Miss Catherine Isberg; or have failed to understand (a) just what was furnished; (b) that the claim was for a lien on both houses; (c) who were the owners or reputed owners; (d) who was the contractor to whom the materials were furnished; (e) the lots on which the lien was claimed; (f) the character of the buildings. In other words it contained all that the statute required to make it a valid lien. And the bill alleges and the demurrer admits that notice of an intention to claim a lien was given in proper time to the owners of both lots.
Nor does the explanation in the bill of complaint constitute a waiver of the lien against the property of the defendants other than Catherine May Isberg, as contended by appellee. It says merely that, as between the builder and the several owners, Catherine is the debtor, because her mother and father have paid the builder for their house. But it does not say that plaintiff for that reason had released his lien against the property of Mr. and Mrs. Isberg. On the *Page 667 contrary both the claim as filed, and the bill of complaint, distinctly claim a lien against both properties, and the bill alleges that plaintiff is unable to apportion his claim because he does not know what part of the materials went into each house. That apparently is the reason the claim was filed against both properties rather than against the property which was conveyed by Mr. and Mrs. Isberg to Catherine. See Fulton v. Parlett, supra.
It remains to consider the objection urged in appellees' brief that the contractor was not made a party defendant. It seems rather late to make that point. It evidently was not considered by the chancellor, and, so far as the record shows, was not made below. But, apart from that consideration, the point is not well taken.
Under our statute (section 25 of article 63 of Code-: "If the proceeding is by bill in equity, the same proceedings shall be had as used by the courts of equity to enforce other liens and the court shall decree a sale and appoint a trustee to make sale thereof and shall apportion the proceeds of such sale among the persons entitled to liens according to their respective rights." It has been repeatedly held that the proceedings are in rem.Shryock v. Hensel, 95 Md. 626; Kelly v. Gilbert, 78 Md. 438;Long Contracting Co. v. Albert, 116 Md. 114.
The proceeding is analogous to a common law foreclosure proceeding, the contractor, who owes for labor or materials, being somewhat in the same situation, relatively, as the mortgagor who has assigned his entire interest in the mortgaged property; that is, he has no interest in the proceeding in rem, but owes the debt for which a lien has attached to another's property. Mr. Miller, in his excellent book on EquityProcedure, says at page 76: "In case of assignment by the mortgagor of his entire interest the assignee only should be made a party, the mortgagor in such cases being neither a necessary or proper party, unless he has warranted the title to his assignee, or unless a personal judgment is *Page 668 sought against him." However, in Worthington v. Lee, 2 Bland, 678, it is said that a mortgagor who has not been legally divested of his whole interest is a necessary party, while one who has an interest in stating the account, or against whom a judgment may be obtained for balance, is a proper party. See also Holmes v. Humphreys, 187 Mass. 513; Hilton BridgeConstruction Co. v. N.Y. Central etc. R. Co., 145 N.Y. 390. Undoubtedly the contractor could have been made a party defendant at the request of the owners, and is frequently joined as a defendant voluntarily by the plaintiff; but he is not anecessary party.
In considering the matters presented by this appeal it is important to keep in mind the provision of section 41 of article 63, that "this article shall be construed and have the same effect as laws which give general jurisdiction or are remedial in their nature; and such amendments shall, from time to time and at any time, be made in the proceedings, commencing with the claim or lien to be filed and extending to all subsequent proceedings, as may be necessary and proper; provided that the amount of the claim or lien filed shall not in any case be enlarged."
Real Estate Co. v. Phillips, 90 Md. 515, and Fulton v.Parlett, supra, are illustrations of the length this Court has felt constrained to go in obedience to the spirit of that section. In the former case Judge Fowler quotes from Blake v.Pitcher Wilson, 46 Md. 464, "the spirit in which the mechanic's lien law is to be interpreted, has been prescribed by the Legislature and impressed in such strong terms upon its face that no court can mistake its meaning"; and adds: "It is to be construed in the most liberal and comprehensive manner in favor of mechanics and material men."
In our opinion there was error in the order sustaining the demurrer and dismissing the bill of complaint, and the case must be remanded.
If the evidence supports the allegation that Mr. and Mrs. Isberg have paid for their house, that Catherine May Isberg's *Page 669 house has not been paid for, and that there is a balance due plaintiff, the decree should direct Catherine's property to be first sold to satisfy plaintiff's claim, if the amount found to be due him is not paid by a given date.
Order reversed and cause remanded for further proceedings,with costs to appellant.
PARKE and WALSH, JJ., dissent.