113 A. 313 | Conn. | 1921
Samuel P. Avery, a man of means and interested in the Woman's Christian Association, on April 15th, 1916, conveyed the land in question to the association by a deed duly recorded. This conveyance constituted a gift to the association, so intended and so received. Avery also desired to erect a recreation building upon the land as a further gift to the association, and for that purpose in July, 1916, made a contract with a building firm, to which one Truax succeeded. Avery was a *225 trustee of the association. One Cooley was chairman of the trustees. All had conferred together with respect to the proposed gift, and the association consented that Avery, at his own expense, might erect a building without any financial responsibility on the part of the association and as a gift to it. Under these circumstances a subcontractor, Johnson, claimed that, upon filing the proper papers, he was entitled to a subcontractor's lien. At the completion of the building Truax owed Johnson a balance of $5,590.06. Truax went into bankruptcy April 1st, 1918, at which time $7,000.79 was due and unpaid to him by Avery, upon the building contract. Other liens of subcontractors were also claimed. Avery was ready and willing to pay. The claimed lienors demanded that they should be first paid by reason of their liens on the land of the association or otherwise. The trustee in bankruptcy of Truax, contractor, claimed there was no lien either upon the land of the association or upon the fund in Avery's hands, and that the $7,000.79 was simply a debt of Avery, payable to him as part of Truax's bankrupt estate. The association also claimed that there was no lien upon its land.
It is well settled that under our mechanic's lien law a subcontractor's right of lien depends upon the existence of such a right in the original contractor, whether perfected by him or not; and therefore, in this case, the right of Johnson and the other claimant subcontractors to liens depends upon whether such a right would have existed in Truax, the original contractor. The theory of our law is well stated in Tice v. Moore,
The vital question then is, would Truax, under the contract with Avery and with the title to the land in the association, as above stated, have been entitled, under any circumstances disclosed here, to claim a lien on this land which Avery had some months before conveyed to the association? We think not, and agree with the trial court that the cases of Huntley v. Holt,
Francis R. Cooley was chairman of the board of trustees of the Woman's Christian Association in 1916 and 1917, and Avery consulted with him on various occasions about the proposed building. He (Cooley) conferred with others of the trustees of said association about the matter. On several occasions he went to Rocky Hill to observe the progress of the construction of said building. No action was officially taken by the association or its trustees about the building, but the building was erected with the consent and approval of the association and its trustees.
The meaning of "consent" as used in the mechanic's lien statute has been discussed in both Huntley v. Holt,
Having determined that no lien exists against the association, we come to the question of interpleader proper, under which Avery, the original contractor with the builder, asks whether the balance due from him shall be paid to the trustee in bankruptcy of Truax or to the subcontractors of Truax. Under the statute a mechanic's lien is created to attach only to the building and land on which it stands. In this case, had a lien existed its existence would have created a liability of the association only if it wished to protect its interest in the land, i. e., the lien would only have charged the land, and we do not see how it could in any way affect the debt of the giver, Avery, to the builder, whose contract was with Avery alone. The building contract alone thus furnishes no basis for establishing a lien against Avery. In fact no lien has been claimed against him. It was filed against the association only. No *229 privity of contract existed between Avery and the subcontractors of Truax. As to Avery the situation was never any other than that he became the debtor of Truax, and Truax became the debtor of Johnson and the other subcontractors, and the only way the subcontractors could come at the debt of Avery to Truax was by suit against Truax and garnishment of the money due Truax in Avery's hands as though the mechanic's lien law had no existence. The balance to be paid by Avery was due and unpaid to Truax at the time of this bankruptcy, and was therefore payable to his trustee in bankruptcy alone. The subcontractors, Johnson and the others, must resort to their claims as creditors of the bankrupt estate of Truax, and have no claim against Avery, and no priority as against the fund in his hands payable to the bankrupt estate.
There are two other points of the claimant which perhaps we should notice, as claims upon which he apparently places some reliance. It is claimed that because Avery had given the land to the association he was the equitable owner at the time of the contract with Truax. The gift of the land had been made to the association about three months before the building contract was made, and when there were no obligations which could operate as a charge upon the land. Avery's deed constituted an absolute gift, and his building contract with Truax three months after could not of itself create an equitable interest against the association because the title had been conveyed long before any liability had been incurred under the building contract. The fact that Avery was undertaking by a contract, to make a gift of the building on the land he had conveyed, no more operated to make him an equitable owner of the land than he would have been had a third party made a gift of the land, or it had been paid for by the association. *230
The appellant also claims that the subcontractor is not bound in every instance by the secret terms of the contract between the general contractor and one not owning the land. Whatever the appellant may mean by this, it certainly cannot be true that any contract of Avery with Truax can operate in any way to bind the association, without its agreement or consent under the terms of the statute, which, as we have seen, is entirely lacking.
We think the rules as we have applied them to the facts of this case cover the whole case, and that it is not necessary to mention certain minor claims of the appellant, which are unimportant in view of the result already reached.
There is no error.
In this opinion the other judges concurred.