APPEAL from the Circuit Court of Du Page County; the Hon. S.
BRUCE SCIDMORE, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 8, 1981.
This is an appeal from an order of the circuit court of Du Page County wherein Contract Builders Service Corporation (Contract Builders) and Edward Hines Lumber Company (Hines) were granted a decree to foreclose mechanics' liens claimed against premises owned by Susan and Terry P. Eland. In the same action, the court denied a mechanics' lien claim filed by Frank J. Laurenzana. Susan Eland, who intervened in the action only after the mechanics' liens had been granted, and Terry Eland appeal from the decree of foreclosure. Hines has cross-appealed, asserting that they were entitled to a lien in the sum of $10,994, therefore, the $5,972 lien granted to them was in error.
In the fall of 1976, Terry P. Eland, an attorney, retained Contract Builders to furnish the cement, steel and carpentry work for the residence Eland planned on building. In February of 1977, after some negotiations, the parties entered into a contract with a price of $23,500. Contract Builders started the carpentry work on or about February 28, 1977, and continued on the job for one month. A disagreement concerning the progress of the work arose between the parties, and the contract was terminated by Eland in late March or early April. Contract Builders' last day on the site was Friday, April 1, 1977. All parties appear to agree that when Contract Builders left the site, the contracted work was approximately one-half completed. On April 29, 1977, Contract Builders filed a claim for a mechanics' lien on the premises.
After Contract Builders left the site, Eland hired Frank J. Laurenzana to complete the construction. The house was substantially completed in August of 1977. On August 28, 1977, Eland moved into the residence and on September 25, 1977, Eland married Susan P. Eland. In early September, Laurenzana gave to Eland a bill for materials and labor and what purported to be a signed, final lien waiver from Laurenzana's material supplier, Hines. Eland then made a series of payments to Laurenzana.
In October of 1977, Hines, a material supplier of Laurenzana, filed a claim for a mechanics' lien in the amount of $10,075.45 against the Eland residence. In December of 1977, Hines filed a final claim for a mechanics' lien against Eland and Laurenzana. At that time, the lien claimed against Eland amounted to $10,994. On February 14, 1978, Terry Eland quit-claimed an interest in the house to his wife, Susan. At that time he instructed her not to record the quitclaim deed due to pending litigation. In May of 1978, Laurenzana filed his claim for an $11,742.62 lien against the Eland premises.
On December 9, 1978, Contract Builders filed suit to foreclose its mechanics' lien. Eland answered and counterclaimed, alleging that Contract Builders had breached the contract. Hines Lumber Company intervened and also filed its claim to foreclose its mechanics' liens. In the same action, Hines brought suit against Laurenzana, claiming an amount due under a contract. Laurenzana filed a counterclaim to foreclose his lien on the Eland premises.
On October 30, 1979, after a trial on the various issues, the court granted a $5,609 lien plus costs and interest in favor of Contract Builders and a lien for $5,972 plus interest and costs to Hines. Hines was also granted a judgment against Laurenzana. Laurenzana's lien claim against the Eland premises was denied.
On November 19, 1979, Eland filed a motion to reconsider. On November 27, 1979, Eland filed additional objections to the decree. At that time, he asserted that the decree of foreclosure was defective in that the parties had failed to join his wife, Susan Eland. On December 13, 1979, after filing a petition to intervene, Susan Eland was granted leave to present a written offer of proof as to what interest she asserted in the premises.
In its January 28, 1980, letter to the parties, the trial court stated that the offer of proof established that Susan Eland married Terry P. Eland on September 5, 1977, after the house had been built, and after all rights pertaining thereto had ripened and attached. The court also found that on February 28, 1978, the defendant, Terry Eland, had executed and delivered a quitclaim deed to Susan Eland with the directions that it not be recorded because of pending litigation. Under the precise facts of this case, the trial court concluded that Susan Eland was not a necessary party; therefore, the motion to dismiss for failure to join her as a necessary party was denied. On February 1, 1980, after considering the various post-trial pleadings, the court entered a decree of foreclosure.
On appeal, the first issue raised by the Elands is that Susan Eland is a necessary party for the entry of decree of foreclosure and that the failure of the claimants to join her makes the decree void. The Elands also contend that the failure to join Susan Eland denied her due process of law. In view of the circumstances in this case, these contentions are without merit.
The Elands contend that Susan Eland, by virtue of her marital relationship with Terry Eland, is a necessary party. The Elands rely principally on the case of Leffers v. Hayes (1945), 327 Ill. App. 440, to support their position. We recognize that in both Anderson v. Gousset (1965), 60 Ill. App.2d 309, and Leffers v. Hayes, the court held that even if the wife of a property owner was not a record owner of the property, she still is a necessary party for a suit to foreclose a mechanics' lien. Anderson v. Gousset, as well as Leffers v. Hayes, can be distinguished from this case. In those cases, there is no contention that the property owner had not been married during the time that the improvements were made, nor is there any contention that the lien claimants were unaware of the marital status of the property owner. In this case, it is evident that none of the plaintiffs had any knowledge of the September 5, 1978, marriage of Terry P. Eland. Eland's contention that when the plaintiffs visited the Eland home to take slides to be introduced into evidence they should have appreciated the significance of Mrs. Eland's presence on the premises and joined her as a party is totally without merit.
Because the plaintiffs had no knowledge of Terry Eland's marriage, they could not have known of any interest Susan Eland may have had in the premises by virtue of marriage. Section 11 of the Mechanics' Lien Act provides that in a mechanics' lien foreclosure action the plaintiff must join "all parties interested, of whose interest he is notified or has knowledge." (Ill. Rev. Stat. 1977, ch. 82, par. 11.) Because the plaintiffs had no knowledge of Eland's marriage, we need not discuss what interest, if any, was created by virtue of the marriage.
Defendant's contention that Susan Eland's interest as a tenant made her a necessary party is also without merit. Obviously, at the time of the decree she was not a tenant; she was an unrecorded owner of the property. There is no doubt, however, that Susan Eland has an interest in the premises by virtue of the unrecorded quitclaim deed. Section 11 defines the necessary parties in interest to include "all persons who may have any valid claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions thereof, or who are interested in the subject matter of the suit." (Ill. Rev. Stat. 1977, ch. 82, par. 11.) We note that the quitclaim deed was not recorded, and that the record on appeal is devoid of any evidence that ...