(dissenting).
I cannot agree with the opinion and decision of the. majority of the court in the captioned case and-wish to express my dissenting views on the matter. The gist of the opinion is that any mechanic or mate-rialman who, under contract with the owner, performs labor on, or furnishes material for, a building operation in progress, has a lien therefor on said building, prior to any incumbrance executed after ' the commencement of the building, the only prerequisite being that it is a continuous building operation.
The lien is statutory’ and I do not believe the law (42 O.S.19S1 § 141) makes such a provision nor do the cases cited in the majority opinion sustain such a conclusion. In the Key v. Hill case [93 Okl. 64, 219 P. 2d 311], “the contract under which the plaintiff rendered services is dated May 1, 1918, and the proof tends to show that plaintiff began rendering services under the contract at about that time or soon thereafter, and before the mortgages to the defendant corporation were executed. The mortgages were dated June 20, 1918. The proof tends to show that the plaintiff was on the job at the time the mortgages were executed, and until the completion of the buildings, on or about the 1st day of January, 1919.” In the Sherbondy v. Tulsa Boiler & Machinery Co. case [99 Okl. 214, 226 P. 565], “the first material furnished by the plaintiff was on March 26, 1917 and the last item furnished was on September 13, 1917. * * * On July 19, 1917, the Federal Refining Company sold and conveyed the real estate in question to W. E. Sherbondy, and at that time the refinery was being built, and the Federal Refining Company agreed to complete the refinery at its cost and expense. On July 23, 1917, Sherbondy sold and conveyed said real estate to the Acme Refining Company, and on August 21, 1918, the Acme Refining & Pipe Line Company sold and conveyed said Property to A. W. Henn.” In the case of Local Federal Sav. & Loan Ass’n v. Davidson & Case Lumber Co., the mortgage was held to be superior to the liens. In the case of First National Bank v. Eagan the question was whether or not the trial court’s finding, that work had started at the time of the execution of the mortgage, was supported by the evidence. This court held that it was. In Braden Co. v. Robinson case, the court was considering the marshaling of assets in a controversy between a vendor’s lien claimant and laborers and materialmen in so far as priority of liens on the improvements only was concerned. In the case of Dickason Goodman Lumber Co. v. Foresman it was held [120 Okl. 168, 251 P. 72] that, “where the evidence shows that the units of the house were constructed at different times and under different contracts and different plans,” the lien of a mortgage is superior to mechanics’ and materialmen’s liens arising from the construction of those units commenced subsequent to the execution of the mortgage. These are all of the cases cited in support of the opinion and it is impossible to see their application to the case at bar.
The other case cited and which the opinion overrules by implication, is that of Fleharty & Co. v. National Loan & Inv. Co. It is my opinion that this last cited case presented the same question as is here involved and is determinative of it. The first syllabus in that opinion is as follows:
“Where material is furnished and labor performed, under a contract with the owner of property to install the plumbing in a building being erected by another, under a separate contract with said owner, held, the lien for such material furnished and labor performed. *923attaches to said property as of the date the first material is furnished or the first labor performed, and not as of the date of the commencement of said building.”
It is my opinion, founded upon a close scrutiny of the cases herein cited and an analysis of the controlling statute, 42 O.S. 1951 § 141, that where the erection of a building is one continuous project, all liens for labor performed on, and material furnished for, such building have their priority dating from the commencement of the building and are co-equal with each other but superior to the lien of a mortgage executed thereon subsequent to its commencement and during the course of its construction, if and only if the work or material, for which the lien was claimed was performed or furnished as a part of an overall plan as evidenced by an over-all contract or one of several contracts, antedating the mortgage.
No such showing was made by the lien claimant herein and as pointed out in the Fleharty case, supra,
“While the statute giving liens to materialmen and laborers for their supplies and labor, is to be liberally construed so as to afford the security intended, it cannot be too strongly impressed upon them that they must not only bring themselves within the provisions of the statutes, but they must be prepared, if the priority of their lien is disputed, to show compliance with those provisions, and to fix with certainty the commencement of their work.”
In the present case the owner of the property was constructing the building under separate and distinct contracts with the laborers and materialmen. There was no general contractor. Those who furnished labor and material did so by direct dealing with the owner. The note and mortgage to defendant in error were executed January 31, 1955, and the mortgage filed of record February 5, 1955. The labor performed and material furnished by plaintiff in error was between the dates of August 1, 1955 and September 20, 1955.
It is therefore my conclusion that the plaintiff herein has failed to establish a factual situation entitling its lien to priority over the mortgage lien of the defendant and that 'the judgment of the trial court should be affirmed.
For these reasons, I respectfully dissent.