ON MOTION FOE EE-HEAEING.
PER CURIAM.— In support of his motion for a re-hearing in this cause, counsel for respondent contends earnestly that the conclusions stated in the original opinion are unwarranted by the record as presented in this Court, and that the judgment of the district court should have been affirmed. While every argument suggested by counsel in support of his motion received our attention in the preparation of that opinion, the questions presented are of sufficient importance to merit some further notice.
1. It is argued that there is no issue in the pleadings upon plaintiff’s allegation that the materials were furnished for and used in the building sought to be subjected to the satisfaction of the plaintiff’s claim, and that we should not have considered the assignment that the evidence is insufficient to support the finding for the plaintiff on this point. This contention would be sustainable if we were to look to the pleadings alone to determine the issues tried. Defendants, in their answer, first deny ‘ ‘specifically and generally each and every material matter and thing” contained in the complaint. Again, referring to the paragraph of the complaint containing this allegation, defendants deny ‘ ‘that the whole of the material mentioned in said paragraph went into and was used in the construction of the building therein mentioned. ’ ’ These denials are clearly insufficient. No objection was made to them in the district court, however, both parties and the court treating them as sufficient. Both plaintiff and defendants introduced evidence on the theory that the issue was sufficient. It is too late for the respondent to object for the first time in this Court that there was no issue. It must be held to abide the result of the position assumed and maintained by it in the trial court. (Sweeney v. G. F. & C. Ry. Co., 11 Mont. 523, and cases cited; Hamilton v. Huson, 21 Mont. 9.) The *76declaration of E. C. O’Donnell testified to by Keith as to the correctness of the account was of value only as tending to charge O’Donnell himself. As to Mrs. O’Donnell it was a mere hearsay statement of a past transaction, and not binding on her or Johanna Peterson, even though it be conceded that he was Mrs. O’Donnell’s agent in building the house.
Nor can we agree with counsel in his further contention that the statement in the claim of lien that the Kalispell Townsite Company and the Kalispell Building & Loan Associatipn were the owners of the building and lots is sufficient to sustain a claim of lien as against the interest of Mary O’Donnell therein. It is true that under the facts set forth in the complaint and as shoAvn by the proof, they held the record title to the lots, — the former at the time the building was commenced and the latter when the work upon the building was abandoned and the claim was filed. Under her contract for the purchase of the lots, Mary O’Donnell’s rights were to be forfeited upon her failure to meet her engagements; but so long as she complied with her contract with the corporations, they had no interest at all, except incidentally in the enhancement of their security by the erection of the building. It was for her use and benefit the building was erected, and, under the relation the parties bore to the property, it was her interest only that was subject to the claim of lien at the time it was made. The two corporations were neither directly nor remotely connected with the building, nor were they brought into any contract relation with the plaintiff during its erection through the agency of the O’Donnells, or either of them. It was never the intention of the plaintiff to bind the interest of either corporation by its claim, or to affect such interest in any way. While the lien .is sufficient on its face to bind any interest these corporations had, if it was the intention to bind such interest and the arrangement was such that the interest could be so bound, the facts show that neither at any time had any interest that could be bound. Our conclusion was that the statute requires the claim to set forth the name of the owner whose interest it is sought to affect, and that it is not *77sufficient if it does not do so. A further consideration of the provisions of the statute confirms this view. The lien provided for in the statute is £ ‘upon the property upon which the work or labor is done or material furnished. ” (Code of Civil Procedure, Section 2130.) The claim filed with the clerk must contain “a correct description of the property to be charged with such lien.” (Id. 2131.) The abstract made by the clerk must contain, among other statements, “the name of the person against whose property the lien is filed, and the description of the property to be charged with the same.” (Id. 2132.) In so far as the sections cited refer to the relation of ownership 'and property, the terms used are general. Sections 2133, 2134, and 2135 define and limit these general expressions referring to property, and point out the interests in the property which may be charged with the lien and subjected to its satisfaction. In case the interest of the person causing the building or other improvement to be constructed is a fee simple estate, the lien extends to the land upon which it is situated to the amount of one acre, if outside of a town or city, or to the whole of a lot or lots within a town or city. If, however, “such person owned less than a fee simple estate, ’ ’ then his interest only is to be charged. (Section 2133.) If the interest is a lease-hold interest and the lease becomes forfeited, the building or structure only is charged, and, if severable from the soil, may be sold and removed by the purchaser within twenty days after the sale. (Section 2134; Montana L. & M. Co. v. Mining Co., 15 Mont. 20; Johnson v. Puritan Miming Co., 19 Mont. 30.) If the property is subject to mortgage or other incumbrance effected prior to the inception of the lien, then the lien extends to the building or structure in preference to the rights of the mortgagee, and it may be sold and removed, if severable from the soil, at any time before the mortgagee may demand possession under his foreclosure proceedings. (Section 2135; Grand Opera House Co. v. Maguire, 14 Mont. 558; Johnson v. Puritan Mining Co., supra.) Another provision of this chapter defines the word “owner” thus: “Every person, in-*78eluding guardians of minors, married women, and any company, association, or coporation not tenants or lessees, for whose use, benefit, or enjoyment any property, building, structure, or improvement mentioned in this chapter is construed, repaired, or altered, is deemed the owner thereof for the purposes of this chapter.” The terms expressive of ownership used in the other sections, supra,, all refer to the interests to be charged. Therefore, if this latter section serves any purpose whatever, it must be looked upon as pointing out the person who owns the interest to be charged with the lien as the proper person to be named in the claim. If this view be correct — and we hold that it is — from all these provisions the conclusion must follow, as already stated, that the name of the owner required to be mentioned in the claim is the name of the owner of the interest to be affected by or charged with the lien; and, further, that the mention of the record owner is not sufficient when the record owner is not the person for whose use or benefit the property, building, structure, or improvement in question ife constructed, repaired, or altered.
Assuming that Mary O’Donnell had such an equitable interest in the lots that they were subject to a lien for the improvement erected upon them to the extent of such interest, the plaintiff should have made its. claim so as to fix it upon this interest, and this could be done only by naming her as the owner. If it was sought to affect the building only, the same requirement should have been observed. (Jones on Liens, Section 1398; Kozartee v. Marks, 15 Ore. 529; Allen v. Rowe, 19 Ore. 188; Boisot Mech. Liens, Section 379; Montana L. & M. Co. v. Mining Co., supra; Phillip’s Mech. Liens, Section 69.) In Montana L. & M. Co. v. Mining Co., supra, this Court impliedly approved this construction of the statute, for it there held that it was not necessary to state the name of the owner of the fee, but that the name of the lessee was sufficient where it was sought to charge its interest only. Consequently, the proceedings to fix and enforce a claim of lien must be initiated and conducted with *79reference to both the person and property to be charged. So long as the record owner of the fee or other interest to be charged is the person who is to be affected by the claim, he is the owner within the meaning of the statute, and it is necessary to name him as the owner; but if, as in this case, the person for whose benefit the improvement is erected does not appear of record as the owner, it is nevertheless incumbent upon the claimant to Insert such owner’s name in the claim. It is no hardship that he shall do so. The claimant is bound to know for whom he works, or for whose benefit he is bestowing his materials. If he assumes the risk without inquiry sufficient to enable him to' preserve his rights it is his own fault. The statute gives him ample time to inform himself. Though the statute is remedial in character, its requirements must be complied with. (Black v. Appolonio, 1 Mont. 342; Phillip’s Mech. Liens, 345.) In the present case the claimant could have gained all necessary information by inquiry of the record owner or E. C. O’Donnell. Some degree of care, at least, is required to ascertain the facts and to act in accordance with them.
There is such a wide difference between our statute and those of states like California that, in many respects, what would be held a sufficient compliance under them, would not preserve a lien under ours. The cases cited by respondent upon the point under discussion do not apply.
2. We deem it unnecessary to add anything to what was said in the original opinion as to necessary parties. Whether the proceeding to enforce a lien be in the nature of a legal or equitable action, the claim cannot be enforced against the property until the debt has been ascertained by an adjudication. In our opinion E. C. O’Donnell is a necessary party in any event, so that this determination may be had. (Boisot, Mech. Liens, Sec. 533; cases cited in former opinion.) If Mrs.- O’Donnell is to be charged with the debt through the agency of her husband, then she is a necessary party for the same reason. Having sold all her interest in the property after the lien became fixed, she is not otherwise a necessary *80party. '(Boisot, Mech. Liens, Sec. 527.) In the statement preceding the former opinion it is said that the names of the O’Donnells were, on motion of plaintiff’s counsel, stricken from the complaint.. The record shows that at the opening of the trial the following colloquy occurred between counsel and the court:
Counsel for Plaintiff: £ ‘We move to strike out the names of Mr. and Mrs. O’Donnell from the complaint, as there is no service against them. ’ ’
The Court: “Very well, if there is no objection.”
Counsel for Defendants: ‘‘There is no objection at this time; but we don’t waive any of our rights.”
Prom this condition of the record, coupled with the fact that the O’Donnells were not served with summons, we felt justified in making the above statement. Counsel complains that this statement is unwarranted, because the motion was subsequently withdrawn. The record originally filed in this Court nowhere shows this fact. With the present motion, however, counsel presents a certified copy of the minutes of the trial court made on a later day of the trial. From this it appears that as no formal order had been entered striking out the names of the O’Donnells, counsel was permitted to withdraw his motion to have this done, thus leaving the parties to stand as at the opening of the trial. We presume that the trial court, as well as counsel, will understand that what was said in the former opinion on this subject was predicated upon the record as presented and considered at the hearing. The fact that the O’Donnells were named as parties in the complaint did not make them such. Service of summons was necessary for this purpose. Whether they were formally dismissed from the case or not, their rights could not be affected by anything done at the trial. Nor could the rights of the Petersons be affected by the judgment then rendered, because the debt upon which the claim of lien is founded was not and could not be adjudicated by it, so as to authorize a sale of the property. If the plaintiff desires to do so, it may proceed to have the O’Donnells served with summons, whereupon the *81trial court may determine their rights as they appear. So far as the integrity of the judgment appealed from is concerned, the result is the same as if the case had been formally dismissed as to them.
The motion for a rehearing is denied.
Denied.