Carson v. White

6 Gill 17 | Md. | 1847

Magruder, J.,

delivered the opinion of this court.

This is a proceeding by scire facias, grounded upon the act of 1838, chap. 205. The plaintiffs’ claim is for work done, for carpentering, painting, glazing, and materials for the same, in and upon the dwelling-house in East Baltimore street, of which a description is given. The scire facias directs the sheriff' to make known to said John Carson of David, and to all such persons as may hold, or occupy, said building, “to appear in Baltimore County Court, on the first day of January, 1845, to show if any thing they know or have to say, why the sum claimed should not be levied of the said building to the use of said David Carson, Sen. and David Carson, Jr. partners as aforesaid, if to them it shall seem expedient.”

The sheriff’s return is “ made known by copy left with the tenant in possession 25th September, 1844, and also advertised according to law.”

Who was the tenant in possession is not stated, but at the same term, John Carson of David appeared, and by plea, denied that the plaintiffs did “ do, or perform upon, in or about the said building the work and labor in the said claim in the said writ mentioned, or any part thereof. And for further plea said that the said plaintiffs did not furnish the materials in their said claim charged, in or about the building of the said house upon the lot aforesaid.”

At January term, 1846, the appellee appeared in court, and suggested that before the filing of the claim of lien, 4th July, 1844, the defendant mortgaged the said ground to him, and on the 5th August, 1844, (before the filing of the said claim of lien by the plaintiffs) the defendant applied for the benefit of the insolvent laws of Maryland, and the appellee suggested that he is the “ party in interest in the matter of this suit against the said property,” and prayed the court to be permitted to defend the said suit.

The record states that the leave was granted, and the appellee accordingly appeared to said suit by his counsel. Immediately following this is an agreement signed by counsel, that the pleas shall be considered as filed by the appellee, errors waived, and the said appellee (White) is individually responsible for all the costs as defendant.

There was a verdict for the defendant, several bills of exception having been taken by the plaintiffs in the course of the trial, which are now to be examined.

In the first exception, it is stated that the plaintiffs to support their claim, offered in evidence their statement of the work alleged to have been done by them in and about the house on the lot there described, and at the foot of it this acknowledgment :

£CBaltimore, 1844, 12th September.

££ I admit this bill for $357 50 to be correct as above stated, per contract (verbal) between us, and for extras.

Signed, John Carson of D.”

To the admission of this evidence the defendant objected, because the said John had, before the said admission, executed the mortgage and made the application for the benefit of the insolvent laws—which facts were admitted by the plaintiffs.

Because of the rejection by the court of this testimony offered by the plaintiffs, the first exception to be found in the record is taken. Did the court err, in refusing to admit this testimony ?

A mortgage would afford very little security for the debt intended to be secured thereby, if, after its execution, the mortgagor could, by admissions, create liens on the mortgaged premises, and thereby lessen, or it might be, destroy the value of the mortgage. The mortgagor can, by no acknowledgment subsequently to the mortgage, prejudice the interest of the mortgagee. The admission made in this case by the mortgagor ought not to have been admitted in the trial of those issues.

Immediately following the first exception it is stated—the defendant’s counsel then made a written motion as follows: referring to the statement before given, and praying that the appellee for the reasons therein stated, have leave to defend, which is granted by the court, and to this there is an exception by the plaintiffs.

This part of the record, taken in connection with what has been previously stated, relative to an application by the appellee to the court, is not very easily to be understood. It will be assumed, however, that the design of the exception was to question the authority of the court below, to permit an appearance in the case by the appellee.

Why should he not be permitted to appear ? This is a proceeding in rem, and is designed to charge, with the claim of the appellants, property conveyed to the appellee, and the legal title to which we must assume was in him. Who was the proper person to appear, and resist this claim, as a claim against the mortgagee’s interest ? It cannot be that the mortgagor was the only person to decide whether the claim should be resisted or admitted.

It is suggested that John Carson's trustee, appointed upon his application for the benefit of the insolvent laws, was the proper person, and no doubt he was a fit person to defend the equity of redemption, which had been conveyed to him, if he thought it of any value; but it is equally clear, that the appellee was not bound to abandon his title to the protection of the trustee, over whom he had no control, and who, by his acts, admissions and omissions, might prejudice the rights of the appellee. If the appellee, claiming the property as he did, could not defend the suit, surely the plaintiffs ought not to be permitted to obtain a judgment, by which his interest was to be affected.

If the appellee could not be made a party, why is the sheriff to give notice to all such persons as may hold or occupy the building ? Why are all such persons to appear before the judges of the court, to show if any thing they know, or have, to say why the sum of money claimed should not be levied of the said building, “ if to them it shall seem expedient?” The appellee here was one of the persons, to whom the • sheriff, it would seem, was to give notice. Why is he to be warned to appear, if although he “ have to say,” why the money is not to be levied on his property, he is not to be permitted to say it? He could only say it by being permitted to be made a parly to the suit.

■ Our attachment laws do not expressly authorize the claimant of the property attached to appear to the suit; yet claimants are permitted to interpose their claim, and the cases of Campbell vs. Morris, 3 Harris & McHenry, 552, and Ranahan vs. O'Neal, 6 G. & J. 298, tell us that they have the right to appear. If then the act of 1838 did not expressly authorize the appellee to appear; yet this being a proceeding in rem, his right to appear and defend his interest cannot be questioned. There are, however, many clauses in this Act of Assembly which would be without meaning, if they leave the owner of the property designated to be condemned without liberty to show cause why his property should not be made to pay a debt for which he never was answerable. See clauses 16, 17, &c.

After excepting to the two above mentioned decisions by the court, the plaintiff then offered other testimony designed to prove the amount and value of the work done, and of the materials furnished about the said house; when the testimony was offered, the defendant prayed the court to instruct the jury that the plaintiff was not entitled to recover for the several reasons set forth in the exception. This instruction the court gave, and thereto also an exception was takén.

In examining the question thus brought before the court, it is proper to bear in mind that the court is not to inquire how much of this testimony ought to have been admitted, or the value of any portion of it; if this had been an action brought for the value of this work, and of the materials furnished against the person, at whose request the materials were furnished, and the work done. The plaintiffs claim a right to a judgment, the effect of which would be to charge one man’s property with the payment of a debt contracted by another, without the request, and perhaps without the knowledge, of the owner of the property. Grounding this proceeding upon the act of 1838, they are, of course, to prove that this act gives the remedy which they seek by this proceeding; and if the proof adduced is not such as the law requires of them, they have no cause to complain of the judgment of the court below.

The act of 1838 does not deprive any creditors of the remedies which the law gives to other creditors having claims of the same description. This additional or extraordinary remedy is allowed to mechanics and some others, if they comply with the conditions in the law prescribed, and the creditors who think proper to proceed under this law must show substantial compliance by himself with its requisites. No mechanic has, in virtue of the Act of Assembly, a lien on the house which he has built or repaired, unless he has filed in the office of the Clerk of Baltimore County Court a statement of his demand, and in that statement has given not only the sum due, but also the nature or kind of the work done, and the kind and amount of the materials furnished, and the time when the materials were furnished, and the work done.

The mechanic, or other person then, who would claim a lien in virtue of this Act of Assembly, in his statement, to be filed in the office of Baltimore County Court, must not only state the sum claimed, but must also, in the statement to be filed there, for the inspection and scrutiny of all persons who are or may become interested in the premises, give a bill of particulars, whereby all who may be interested can ascertain not only the amount demanded, but the correctness and reasonableness of the demand. The items must be furnished, in order that other creditors and persons interested may know for what services, and what materials, the sum alleged to be due is claimed, and thus have an opportunity of proving the injustice or extravagance of the demand. All this must be done in terms sufficiently explicit and comprehensive, in order to prevent the frauds which otherwise might be practised upon others— strangers to the contract, by the claimant and the reputed owner.

That the Act of Assembly was not in this case complied with, will be made obvious by a comparison of the statement of the demand furnished by the plaintiffs, with that which makes a part of the deposition of Samuel Harris, lo be found in the exception, The statement filed in the office is not such a statement as the law requires, and must be supposed to require, for wise reasons. Indeed, it gives only the information which is afforded, in a declaration upon a quantum meruit, for work done, and materials found. Yet, with that information, the defendant, although alleged to be the party at whose request the work is done, and the materials are furnished, is not bound to be satisfied, but may insist upon being furnished with the particulars before he can be required to plead; whereas, in a proceeding of this description, to affect the interests of entire strangers to the contract, if the particulars cannot be required in the statement to be filed in the office, it cannot be required by them at all.

Having failed themselves to comply with the requisites of the act of 1838, the plaintiffs cannot avail themselves of that law, but must have recourse to the remedies before existing for the recovery of their claim. There is, then, ho error in the instruction given by the court in the last exception.

The áct of 1845, to which we have been referred, has no application to this case.

JUDGMENT AFFIRMED WITH COSTS.