St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-01-26
Judge Schoonmaker Contributes
ri Some Thoughts Upon It,

L
you referred to our so-called new me-
chanic's lien law. and pointed out and
commented at some length upon some
of the difficulties encountered in its
practical operation.
You rightly say that it twas drawn
with great elaborateneSS and wealth of
detail which is really quite without
precedent in this state" and that it
breads with the greatest clearnesS. and
there is evident the most serious effort
after completeness and eXactDesS."
While conceding all this, we must not
forget that neither the greatest compre-
hensiveneSS of purpose, the greatest
elaborateneSS and minuteneSS in details,
the utmost simplicity OF language
and rhetoric, nor the greatest perSDicu-
ity of meaning, either Jointly or sever
ally, ever made, per Sc, good law. All
of these requisites are greatly to be
desired in any law, and more particu-
larry In one intended for the protection
of class of persons who, presumably at
least, will act under it and have need of
the protection it purports to offer: yet.
in Judging of its practical merits we
must not suffer ourselves to mistake its
elaborateneSS in details nor its rhet0r-
ical simplicity for complete, cogent and
exact enunciationS of sound and ben
efical law. A page in child's reader
may be a perfect model of
simplicity, and you may be
able to read and understand
it with the utmost ease and without any
conscious mental eXerti0n, yet no sane
man would think OF comparing its
thought with Hamlet's solilOquy. This
law is not wanting half so much in elab
crate details and simplicity of diction
as in legal eXactness and good practical
common sense. Its very verbiage seems
to have concealed, at the time of its
passage, its worst defects, and led peO-
pie to believe the law model of per-
lection. Undoubtedly its elaborateness
and simplicity is its greatest weak
ness. Paucity is sometimes
dition-especially in relation to
class legislation of this character.
In respect to the classes of persons to
whom liens are given, and their extent,
this law is not subject to any serious
criticism, particularly in a state where
the policy of allowing the privilege of
lien 10 labor and material seems no
longer debatable question. The diff
Guilty with this law is chiefly In the
ni;inner of its endorsements and the
failure 10 provide for certain cOntin-
gencies occurring frequently in prac-
tice. The following, L think, may be
pointed out as serious defects and
omissions which ought to be corrected
or supplied:
First-If the owner of land sells the
same upon an eXecutory contract. or
gives bond for deed and the vendee
afterwards builds upon the land, which
he may do without the consent and
even against the will of the vendor, the
vendor to protect himself in the balance
of his purchase money (the law says
"interest," but in the eyes OF the law he
only holds the naked title as security
for the unpaid purchase money!, must,
within five days after notice of the erec-
ton. either serve written notice upon
each person performing labor or fur
nishing material, or keep posted on the
premises a written notice that his
interest" will not be subject to a
lien. The first is very difficult, if
not practically impossible, while the
latter is practical impossibility, unless
the vendor goes to the unreasonable eX-
pense of keeping a Waterman on the
premises during the entire progress of
the work to see that the notices are not
torn down. An absent owner, subject
to such contract, may thus lose his
property without any fault on his part,
unless it may be considered a ''grievous
fault" on the part of the owner of real
property to sell the same upon an exec
utOry contract, for which just and ade-
quate punishment is the forfeiture of
his property. Under this law the vendor
might even provide in his contract that
the first item of labor or mater
.ial in the erection upon the
Il ol0a fC +t,n
contract and he might record his con-
tract so that the public would be pre-
suned to have notice of its contents,
and yet he would lose his property
without his fault if this law in this re-
Spect be constitutional. unless he COM
plies with these practically impossible
requirements about notice. The result
of this provision in our city during the
last year has been twofold: First, own
ers have been afraid to sell lands upon
eXecutory contracts, even to poor people,
where there was no present idea of
building; and secondly, labor and ma
terial men have interpreted this section
as giving them first lien upon every
thing and for everything, which.
by the way, is gross error,
and upon the faith of this
delusion have performed labor and fur
nisned material upon everykind of struc-
ture and at the instance of any one who
requested without regard TO personal
responsibility. AS legitimate result
of this reckless kind of business they
now find themselves involved in numer-
Gus, tedious and expensive litigation,
with a grave constitutional question
staring them in the face, upon the final
determination of which depends the
Inn Of of IN
present hardship and difficulty might
be removed. and every end of justice
fully met, by requiring all such execu-
try contracts to contain the full agr ee-
ment of the parties in relation to build
ing, and that the contracts be immedi-
ately recorded or filed for the inspection
of all persons concerned.
Seeond-Section attempts to deter
mine the vexed question of priority be-
tween lienors and other membranes,
but leaves the question so vague thatno
one can tell whether building loan
mortgage, recorded prior to the first
item of labor or material, but upon
which the money, in whole or in part. is
mott paid until after the lien attached
has priority over the lien. The practi-
cali result of this doubt has been the
production of much litigation during
the last year, and the increase of the
difficulty of obtaining building loans,
and hence decrease in the amount of
building.
Third-This law does not require the
lienor to show upon the face of his lien
statement or notice prima facie right
toeharge the property with his lien.
nor to attach bill of particulars to his
statement. The object of the law in re-
curing verified statement to be filed
ought to be to give notice to all persons
concerned that valid and honest claim
to the full amount stated exists against
the property, and facts sufficient to
show this ought to appear upon the face
of the statement. This defect in the
present law not only makes fraud upon
owners and other incumbrancers posi-
BILE but convenient, and of almost daily
occurrence. The cases of this character
under my own observation during the
last year are too numerous to mention.
Fourth-N0 penalty is imposed for
knowingly verifying and filing a false
lien statement. This becomes very i'm
portant where it is sought to charge the
owners interest fOr-debtS contracted by