I am unable to concur in the majority opinion in this case.
Section 1129, Rem. Comp. Stat., in part provides that every person furnishing material to be used in the construction of a building has a lien thereon for the material furnished, whether furnished "at the instance of the owner of the property subject to the lien or his agent; . . ." Under this statute, there is no lien unless the material was furnished at the instance of the owner of the property or his agent.
In the case now before us, the material was furnished at the instance of Johnson, who, at the time, was neither owner of the property sought to be made subject to a lien, nor the agent of the owner. At that time he had no enforcible right, title or interest in or to the property. Subsequent to the time when the first material was furnished, a deed was made and the respondent's mortgage taken at the same time, and they were simultaneously recorded. If the materialmen had a lien, it would attach as of the date of the first delivery, and, as stated, this was prior to the time that Johnson had any interest in the property, legal or otherwise. It is true that, prior to the delivery of the *Page 50 deed and the making of the mortgage, a representative of the respondent, the mortgage company, visited the property and observed that some work was being done. The respondent would undoubtedly be charged with the knowledge of its agent in this respect. It knew also that Johnson, at the time, was not the owner of the property or the agent of the owner, and that, under the law, it was only those who furnished material at the instance of the owner or his agent that had a right to a lien.
The case of Colby Dickinson v. McCulloch, 145 Wash. 561,261 P. 86, is not in point. In that case, there was before the court for construction Rem. Comp. Stat., § 1133, which, in part, provides that every person furnishing material to be used in the construction of a building shall,
". . . not later than five (5) days after the date of the first delivery of such material or supplies to any contractor or agent, deliver or mail to the owner or the reputed owner of the property, on, upon or about which such materials or supplies are to be used, a notice in writing, . . ."
It was there held that the notice required by the statute was not necessary when the material was ordered by the owner himself and was not ordered by any contractor or statutory agent. Further than this, in that case, the deed was made and delivered in escrow July 14, 1926. The mortgage was executed on the twenty-second of that month, and recorded on the twenty-third. A number of days elapsed between the delivery of the deed and the execution and recording of the mortgage. In the interim, the liens for material would attach which had been furnished prior to the delivery of the deed by the purchaser, who was then in possession and authorized to proceed with the construction of the building. *Page 51
In the present case, as stated, the deed and mortgage were delivered at the same time and recorded simultaneously. There was no interim in which liens could attach.
For the reasons stated, I cannot concur in the majority opinion, and therefore dissent.
FRENCH and FULLERTON, JJ., concur with MAIN, J.