Amidon v. Benjamin, 128 Mass. 534

Amidon v. Benjamin

128 Mass. 534 | Mass. | 1880

Soule, J.

The petition sets forth that Quartus W. Benjamin is the owner of the land on which a lien is claimed, that the work was done with his knowledge and consent, and that a certificate of the amount due the petitioner, stating the name of the owner of the land, was filed in the office of the town clerk of *537Montague. There is no dispute as to the amount due, nor as to the seasonableness of the filing of the certificate. It appeared, however, at the trial in the Superior Court, that a deed of the premises to Emma J. Benjamin 'had been made and recorded before the certificate was filed in the office of the town clerk, and that the petitioner knew this. The respondent contended that the lien could not be maintained, because the certificate did not state the name of the owner of the premises, as required by the statute. Gen. Sts. c. 150, § 5. The petitioner contended that the statute had been complied with, on the ground that the deed to Emma was never delivered, and, if delivered, was inoperative, because given without consideration and with the intent to defraud the creditors of Quartos. If he had established the facts on which he relied, they would have sustained the allegation of ownership in the petition. Amidon v. Benjamin, 126 Mass. 276. The judge who presided at the last trial found for the respondent, and must, therefore, have found that the deed to Emma was made for a valuable consideration, and was delivered and was valid against creditors of the grantor. This finding was warranted by the evidence. The grantor, being in debt to Emma, promised to convey the premises to her when he obtained a title. He made the deed in about three weeks after the conveyance to himself, having first incumbered the premises with a mortgage to one King. Emma never had the deed in her possession, but she was informed that it had been made, and it was put in evidence after she had been summoned in to defend her title against this petition. There is enough in these facts to warrant the finding that Emma assented to and accepted the deed in payment of the debt due her from the grantor.

It follows that the petitioner lost his lien, because he did not state in his certificate, filed in the town clerk’s office, the name of the owner of the land, it being known to him.

Petition dismissed.