Brooks v. Lester

36 Md. 65 | Md. | 1872

Miller, J.,

delivered the opinion of the Court.

Objection has been made to the validity of the mortgage to the appellant on the ground that the sum (not exceeding $3,600) thereby agreed to be advanced for the erection of the houses, was not to be in money, but in building materials. Where the amount which it is intended to secure is expressed in the mortgage, as required by the Code, (Art. 64, sec. 2,) it is valid, though designed to secure future advances to that extent. Mortgages, or ‘ deeds in the nature of mortgages, to secure future loans or advances, if bona fide made, have always been sanctioned by the Common Law, and if unexceptionable in other respects, their validity cannot be questioned in Maryland. Wilson vs. Russell, 13 Md., 530. In our opinion, the validity of such an instrument is not affected by the fact that the parties thereto agree that the advances shall be in materials to the specified amount in value instead of money. We see no reason why an agreement to advance and receive building materials in lieu of momey should not constitute a legal consideration for a mortgage of this character.

The main question in the case is one of fact, viz: whether this mortage was recorded before or subsequently to the “commeneement of the building.” If before, it. has priority; if subsequently, the mechanics’ lien has preference by the express terms of section 15, Article 61, of the Code.

The mortgage was executed on Monday, the 6th of December, 1869, and recorded at half-past two o’clock, P. M., on the same day. It was proved by Spreckelmyer, the mortgagor and builder, that on the afternoon of the preceding Saturday he laid the ground off for the- buildings, and drove some pegs in the ground in laying it off, but nothing more was then done. We cannot regard this as a commencement of the building within either the letter or the spirit of the law. In the case of Pennoch vs. Hoover & Myers, 5 Rawle, 308, it is said, it may be safely considered the universal understanding as to what constitutes the commencement of the building of a house, that it is “ the first labor done on the ground which is made the foundation of the building, and to form part of the work suitable and necessary for its construction.” The facts of that case do not warrant the inference the Court would have held such acts as these we are now considering, to constitute a commencement of the building. If that were so, the same thing might be said of the mental labor of selecting the location, designing dimensions, and the mechanical work of measuring the ground and drawing plans of the building on paper, all of which would leave no patent and plainly visible trace of work and labor on the ground itself. This would open wide the door to innumerable frauds upon parties advancing money on mortgages of this kind. What the law means by these terms is, some work and labor on the ground, the effects of which are apparent, easily seen by every body, such-as beginning to dig the foundation, or work of like description, which every one can readily see and recognise as the commencement of a building.

Little or no reliance seems to have been placed upon these acts in the Court below. Most of the testimonyand the attention of the Court was very prpperly directed,, to the question whether the excavation for the cellars and foundation was commenced on Monday morning before the mortgage was recorded, or on the morning of the following day. As to this we have, after a careful examination of the evidence in the record, reached a different conclusion from that arrived at by the Circuit Court. The testimony is conflicting, as is naturally to be expected, so far as it rests upon the memory of witnesses testifying to a fact like this, occurring nearly two years before they were examined. It is proved however by that sort of proof which carries with it absolute conviction, that a storm commenced on Saturday night and continued until Monday night, of such a character as to be noticed in all the daily papers of the city, and by those whose practice or duty it was to observe the state of the weather. By evidence derived from this source, it is clearly established that this storm began on Saturday night, with a cold and steady rain, making Sunday one of the most unpleasant and disagreeable days of that season; that it continued during all of Monday, accompanied with hail and snow, which fell to the depth of two inches or more. On Monday night the storm ceased and pleasant weather followed. The testimony on the part of the appellees is chiefly that of Murray, who performed the work of excavation, and that of two of the laborers then in his employ. These three witnesses each state the work was commenced early on Monday morning and was continued during all that day. Murray, in corroboration of his testimony, produced a memorandum in his book, made at the time, of the number of days his workmen worked on this job, showing they worked five days during that week. This memorandum does not however show conclusively that the men worked on Monday; it does not designate the days of the week, and consists simply of five marks opposite the names of the several workmen, showing each had worked five days, and is accompanied by the date, 6th of December, 1869. Murray says the work was finished on Friday, and that they did not work there on Saturday, thus making Monday one of the five days of the memorandum; but this statement is made from memory, and one of the workmen named in the memorandum says he remembers to have worked there on Saturday. It is perfectly consistent with the memorandum to include Saturday and omit Monday from the five days of jwhicji it professes to be a record. But that these witnesses were mistaken in supposing the work was begun on Monday, appears to us quite plain from their answers to questions as to what sort of weather it was on the day they began the work. Murray says “ it was tolerably cold, but we had no rain or snow on that day that I remember.” One of the workmen says “ it was cold weather, no snow and no rain,” and the other, “the morning was blowing a little, right sharp .and no snow on rain when we commenced;” and he had previously described it as a dry, sharp, cold morning. This could not have been the weather on Monday, and is precisely what it was on Tuesday. On the other hand, Brooks, the appellant, says he visited the premises Monday afternoon, after his mortgage was recorded; that “ it was snowing at the time; there had been no work commended on the buildings; there were no carts, wagons or laborers there, and I was satisfied there had been none there during the day, and then I felt easy on my mortgage; I went up there for that purpose.” His testimony is supported by that of Spreekelmyer, who says he believes the digging was commenced on the 7th or 8th of December; and that of 'Watkins, who visited the premises about 9 o’clock on Tuesday morning to see about selling lime for. the buildings, and says he saw they were digging the cellars, and judged they had been at work about two hours; it looked like they had just commenced that day. That could not have been the appearance of the work, if three hundred cart loads of earth had been removed on the preceding day, as testified to by Murray.

In our opinion, it is established by the weight of evidence, that the work was not commenced until Tuesday morning. It follows, the order appealed from must be reversed and the claim of the appellant under his mortgage allowed in full, in preference to the liens of the appellees, and for that purpose the cause will be remanded.

(Decided 17th May, 1872.)

Order reversed and cause remanded.