117 Mass. 176 | Mass. | 1875
It appears from the report that Rand and Henck, by separate deeds of even date, acquired title to two parcels of lands, one situate on Harrison Avenue, and one on Sharon Street, in Boston ; the two parcels abutting upon each other and uniting in the rear. In their conveyances one parcel was designated as lot “ A,” Sharon Street, and the other as lots “ D ” and “ E,” Harrison Avenue, on a plan of lots owned by the city of Boston. No fences or visible boundaries separated the lots at the time of the conveyances or when the plaintiff made his contract, under which he seeks to enforce a lien.
Soon after these conveyances, the petitioner made a contract in writing with Rand and Henck to do all the carpenter work, and to furnish certain material, for a round sum, in the construction of two houses, belonging to them, to be erected or in process of erection on their land. These, houses were separate from each other, one on that portion of the land conveyed as lot “ A,” and the other on that portion conveyed as lots “ D ” and “ E.” It is not denied that this contract was performed by the petitioner, and it was in evidence that a balance is due him under this contract; and also a balance for extra work done upon both houses under an oral agreement.
The case cannot be distinguished, so far as the claim under the contract is concerned, from Wall v. Robinson, 115 Mass. 429. That the land was conveyed in separate lots, or designated as separate lots on the plan of lots owned by the city of Boston, or that one parcel was on Sharon Street and the other on Harrison Avenue, being contiguous to each other in the rear, or that the buildings were separate, one standing on each parcel so conveyed, are facts not material, and do not affect the principle upon which Wall v. Robinson was decided. The whole constituted one parcel of land owned by the same parties, which they could divide as they pleased, and upon any portion of which they could erect
The mortgages appear to have been made subsequently to the contract and the commencement of the work under it, and the mortgagees take their title subject to the lien. Dunklee v. Crane, 103 Mass. 470.
The admission of Rand as to the amount still due under the contract and unpaid, was competent evidence and properly admitted.
In regard to the extra work, it does not appear from the report what the oral agreement was under which it was performed, or when it was made. These facts may be material, and as the case must stand for trial and the facts may more fully appear in evidence, we express no opinion on that point.
Case to stand for trial.
