Summary
In Dodge v. Walsham, 16 R.I. 704, it was held that this notice must, in Providence, be recorded in the office of the recorder of deeds in order to be effectual.
Summary of this case from Tingley v. WhiteOpinion
February 1, 1889.
The notice to secure a mechanic's lien for materials, which must by statute be recorded, can in the city of Providence be recorded only in the office of the recorder of deeds, and in a book to be kept for that purpose.
PETITION for the enforcement of a mechanic's lien.
Edward C. Dubois, for petitioners.
Herbert B. Wood William Fitch, for respondent.
This is a petition for the enforcement of a mechanic's lien for materials furnished. The materials, in this as in the case of Gurney v. Walsham, ante, p. 698, were furnished by the petitioners as material men to William W. May, who had contracted in writing with the defendant to build a dwelling-house for him on a lot of land belonging to him in the city of Providence. In this case the copy of the sixty days' notice, required to be placed on record as stated in Gurney v. Walsham, was filed in the office of the city clerk of the city of Providence. The defendant objects that such a filing of the copy was insufficient to give rise to the lien. In Gurney v. Walsham, the petitioners placed the copy on record in the office of the recorder of deeds in the city of Providence, and we decided that in so doing they had complied with the statute. We are of the opinion that the office of the recorder of deeds is the only place in the city of Providence where such a copy can be placed on record so as to be effectual. But if it were otherwise, we think the petitioners have not complied with the statute. Merely to file the copy in the proper office is not enough. The statute is express that " no lien shall attach for materials furnished unless the person furnishing the same" shall give notice as required, and "place a copy of said notice on record, . . . in a book to be kept for that purpose." It appears from the evidence and admissions in this case that the petitioners filed the copy in the office of the city clerk of the city of Providence, and that the city clerk, instead of recording the copy or placing it on record in any book, put it loosely into a case or box with other like copies, and only recorded the names of the parties to the notice, together with a minute of the time when the copy was filed, in a book constructed for that purpose by stitching together a few sheets of paper. The city clerk testified that the copy was as accessible to inspection as if it had been placed on record in a book. It may be so; but it was not so placed on record, and the statute declares that "no lien shall attach" unless it be so placed. The thing done was in form and substance other than the thing required. The words of the statute are plain, and we find nothing elsewhere in the statute to warrant our giving them by construction any other than their plain meaning. It is for the petitioners, who are claiming under the statute in derogation of the common law, to show that they have complied with all the requirements of the statute.
See Pub. Laws R.I. cap. 696, § 4, of March 21, 1888.
Petition dismissed with costs.