Opinion
No. 7410DC319
Filed 21 August 1974
Laborers' and Materialmen's Liens 6 — time of filing — lien invalid Where plaintiff filed notice and claim of lien against defendants on 27 July 1973 for labor and materials used in stonework on defendants' property, and the claim stated that materials were last furnished upon the property on 28 March 1973, plaintiff thereby indicated his failure to file the claim within 120 days after the last furnishing of labor and materials as required by G.S. 44A-12 (b), and the lien is therefore invalid.
APPEAL by defendants King's Row, Inc., John G. Whichard and Mary K. Whichard from Barnette, Judge, 12 November 1973 Session of District Court held in WAKE County.
Robert A. Hassell for plaintiff appellee.
Reynolds and Russell, by E. Cader Howard, for defendant appellants King's Row, Inc., John G. Whichard and Mary K. Whichard.
Judge BALEY dissenting.
This is an action to enforce a lien for labor and materials furnished.
Plaintiff has three counts in his complaint. In the first count he alleged that he entered a contract with defendant General Building and Masonry Contractors, Inc., to perform certain stonework on real property owned by defendant King's Row, Inc.; that he performed this work in accordance with the contract, completing it on 28 March 1973, and was due the sum of $2,141.25. The second count alleged that General Building was the agent for King's Row and that King's Row had thereby contracted with plaintiff for the stonework. The third count alleged that King's Row had conveyed the property to defendants John G. and Mary K. Whichard and that defendants General Building and King's Row had been acting as the agents of the Whichards in contracting with plaintiff for the stonework. All of the defendants have refused to make payment to plaintiff for the work performed. In his prayer for relief, plaintiff requested that he be granted judgment for $2,141.25; that the judgment be declared a specific lien on the property; and that the property be sold to satisfy the judgment.
Notice and claim of lien against all defendants was filed by plaintiff on 27 July 1973. The notice stated in part:
"5. The material was first furnished upon said property in February 1973 and was last furnished upon said property on March 28, 1973."
On 4 October 1973 plaintiff moved to amend his complaint so as to allege that the work was completed on 3 April 1973 rather than 28 March 1973. On 10 October defendants moved to cancel and remove plaintiff's notice of lien on the ground that it was not filed within 120 days after the last furnishing of labor or materials, as required by G.S. 44A-12 (b). (27 July 1973 was 121 days after 28 March 1973.) The District Court entered an order granting plaintiff's motion to amend his complaint and denying defendants' motion to cancel the notice of lien. Defendants appealed to this Court.
Defendants present two questions for our determination. First, they contend that plaintiff's notice of lien is invalid because it fails to specify the exact date of the first furnishing of labor and materials. Plaintiff's notice states only that the stonework was last furnished "in February 1973". However, we do not deem it necessary to discuss this contention inasmuch as our treatment of the second contention is dispositive of the appeal.
Defendants next contend that plaintiff's lien is invalid because the notice and claim of lien was not filed within 120 days after the last furnishing of labor and materials as required by G.S. 44A-12 (b). This contention is based upon the statement of plaintiff in the claim of lien that materials were last furnished upon the property on 28 March 1973. Since 28 March 1973 is more than 120 days prior to 27 July 1973 when the claim was filed, defendants argue that the lien itself was void.
G.S. 44A-12 (b) provides as follows:
"Time of Filing. — Claims of lien may be filed at any time after the maturity of the obligation secured thereby but not later than 120 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien."
Although the statute clearly requires that the lien be filed within 120 days after the last furnishing of labor or materials, there is no requirement that a mechanic, laborer, or materialman state in his claim of lien the date of the last furnishing. Plaintiff has, therefore, placed in his claim of lien information not required by the statute. However, if we were to treat this information as a mere surplusage, we would do injury to the purpose of the lien statute.
It is well established that a lien is lost if the steps required to perfect it are not taken in the same manner and within the time prescribed by law. Priddy v. Lumber Co., 258 N.C. 653, 129 S.E.2d 256 (1963) [a suit between a holder of a deed of trust and a lienor-judgment creditor to establish the priority of their liens]. Although the claim of lien filed by plaintiff contains information not required by the statute, it reveals on its face that it was filed more than 120 days after the stonework was last furnished by plaintiff. Thus all potential purchasers or lenders interested in the subject property and relying on the public record would be advised that the claim of lien had not been filed in accordance with the statute, and was not enforceable against the property. To require the title examiner to go outside the public record to discover that the stonework was in fact — as plaintiff claims — completed less than 120 days prior to the filing would in our opinion impose an undue burden on the title examiner and would damage the principle of reliance upon the public record.
We, therefore, hold that the trial court erred in denying defendants' motion to cancel the notice of lien. Plaintiff has, by his own hand, placed on the public record information asserting that he has failed to comply with the Mechanics', Laborers' and Materialmen's Lien statute. The lien itself is, therefore, invalid, and plaintiff may not enforce it against the property in question.
Reversed.
Judge HEDRICK concurs.
Judge BALEY dissents.