Barrows v. Baughman

| Mich. | May 1, 1861

Cheistiancy J.:

We do not think the contract between complainant and Baughman would have entitled complainant 1o any relief on the ground of a mechanic’s lien, had it properly described the land; and (though we give no opinion upon the point) we are not entirely satisfied that, for the purpose of such lien, any further description was necessary, in a case like the present; the tract upon which the house was erected being less than one hundred and sixty acres. See Comp. L. §5068.

But the contract provides upon its face for a mortgage security upon the same land to which the lien is claimed to attach —a species of security entirely inconsistent with the idea of a mechanic’s lien upon the same land as a security for the same debt.

The lien authorized by the statute is intended as a security for the payment of the debt, and can only be enforced as a means of compelling payment. Doubtless such lien may attach and be enforced to compel payment whether the debt be payable in cash or otherwise. But the statute does not give the lien for the purpose of compelling the debtor to give other collateral secw'ity for the debt, nor does it provide any mode of enforcing it for such a purpose. Yet this is the only purpose, we think, for which the lien could be claimed to exist under this contract. At all events no remedy could be given upon it in this case as a means of enforcing payment, as the debt is not yet due. But we are satisfied that the statute -creates no lien where the parties, by their contract, provide for a different security upon the same land for the same debt which the lien would otherwise, secure.

The only remedy, therefore, which it is competent to give to the complainant in this case, is to correct the mistake in the contract by inserting the description of the land, and by enforcing specific performance by a decree for the execution and delivery of the bond and mortgage.

It is fully admitted by the counsel for the defendants, that the nine acres of land described in the bill as that on which the house is situated, was intended to be, and ought to have been, inserted in the contract; and we are satisfied such is the fact. The complainant is therefore entitled to a decree for such correction. IEe is also entitled to a decree against defendant Baughman, for the execution and delivery by him of a bond, and a mortgage (to secure such bond) on ' the nine acres, for the amount due on the contract, to be made payable at the time provided in the contract, which wras to be five years after the work was completed. The last item of work appears to have been done, and the contract substantially completed, about the twenty-first day of February 1857. The bond and mortgage must therefore be made payable on the twenty - first clay of February 1862, with interest at eight per cent, per annum from the twenty-first of February, 1851.

As to the amount to be secured by the mortgage, the contract is not entirely clear; • it is very loosely drawn, but we think, by fair construction, defendant Baughman was to give his bond and mortgage not only for the four thousand dollars, for work thereafter to be done, as specified.in the contract, but also for all the work which had been done or might be done, by the day or otherwise, not included in the contract prices, as well as all materials furnished or to be furnished by the complainant,

[The question of the amount due under the contract is then discussed, and the sum fixed at IseíáO.'¡'9, and the opinion then proceeds as follows:]

But admitting that the question of preference could be properly decided in this suit, and that the respective mortgages of Hubbard and Stewart, if taken with full prior notice of the contract, would be postponed to the mortgage to complainant, provided for by the contract (upon which we express no opinion); still we can not, in this case, give complainant a preference over either of said mortgages, for two very conclusive reasons: First, because such prior notice is not averred in the bill, as to the Hubbard mortgage, and secondly, no such prior notice is proved either as to the Hubbard or the Stewart mortgage.

The only portion of the bill which alludes to notice to Hubbard is as follows: “And your orator further shows that one Bela Hubbard, who was the son - in - law of said Baughman* when said contract was entered into was a subscribing witness to said contract, and he the said Hubbard, well knew the object of the said contract to be the same as hereinbefore set forth, and he had full notice and knowledge of said contract and -the object of it as hereinbefore set forth.”

This allegation is not made in connection with, or with reference to, the mortgage to Hubbard, and can only be construed as an averment of notice of the contract at the time it was executed and witnessed. The bill alleges that it was witnessed and acknowledged on the second day of April, 1856. Such at least we think is the fair import of the allegation: at all events there is no allegation of its being witnessed at any other time, nor that it was witnessed before the date of Hubbard’s mortgage. The bill states the Hubbard mortgage to have been dated the fifteenth day of March in the same year.

Prior notice to Hubbard was not, therefore, put in issue; and no evidence of such notice could properly be admitted: — Warner v. Whittaker, 6 Mich. 133; Bloomer v. Henderson, 8 Mich. 395. But, had it been proj>erly in issue, no such notice was proved in this case. Hubbard was required to answer on oath, and he denies that he knew that any part of said land wras intended to be described in the contract. The only testimony which goes to show prior notice to Hubbard is that of Stephen S. Barrows, the contractor. To say nothing of any interest or bias he may be supposed to have, we are satisfied that the weight of even his testimony (though somewhat contradictory and confused) when taken together, and considered with reference to all the circumstances, tends rather to show that the contract was not executed and witnessed till about the date of its acknowledgment (April 2, 1856), some eighteen days after the execution of the mortgage to Hubbard, and that Hubbard could not therefore have had notice of the contract when ho took the mortgage.

The answer of 'Stewart denies notice, actual or constructive. Prior actual notice is not claimed to have been shown by the evidence, as to him. But, as his mortgage was taken two days after the recording of the contract, it is claimed that the record was constructive notice of the contract.

But, admitting (without intending to decide) that the record might, without any description of the land, have been notice of a mechanic’s lien had the contract been in other respects sufficient to create such lien; yet as it could not so operate, for other reasons already given, the record could only operate as notice to the extent of the land described in it. And the description must be such that by construction, or by the aid of the references contained in it, the land intended may be specifically ascertained by metes and bounds. Here is no such description, by reference or otherwise. A single mathematical point only is described, as a starting point, and, though an inference may perhaps be drawn from the instrument that some land was intended to be included, and was omitted by mistake, yet when considered without reference to a mechanic’s lien (as to which it might perhaps be aided by the statute) no one can say from any thing contained or referred to in the contract, what was the specific land upon which a mortgage was to be given.

The decree dismissing the bill as to Hubbard, Litchfield, Walker and Stewart, must be affirmed with costs; and a decree must be entered against defendant Baughman, in accordance with the foregoing opinion. But as, on the one hand, the decree of the court below has been slightly increased, and on the other, has been materially narrowed by our decree, in refusing the remedy by foreclosure, given by the court below, and by postponing for one year the time of payment, neither complainant nor defendant Baughman, is entitled to the costs on appeal. But complainant is entitled to costs as against defendant Baughman, in the court below.

The other Justices concurred.