Cole v. Colby

| N.H. | Mar 22, 1876

Lead Opinion

FROM COOS CIRCUIT COURT. The demurrers admit all the facts which are well pleaded, and there is no suggestion on the part of the defendants that there are any facts stated which are not well pleaded. I should infer that the statement, that all the conveyances held by the different defendants are subject to the plaintiff's lien, is intended to be a statement of a conclusion of law. If so, it would not be admitted by the demurrer; and I do not see how the mortgage of the savings bank, which preceded the plaintiff's contract, under which he claims his lien, can be subject to it. Cheshire Inst. for Savings v. Stone,52 N.H. 365" court="N.H." date_filed="1872-12-15" href="https://app.midpage.ai/document/cheshire-provident-institution-v-stone-8047756?utm_source=webapp" opinion_id="8047756">52 N.H. 365.

The contract is stated is the bill to be a single contract embracing all the buildings on the land, and the price is stated at one gross sum; and there is nothing which I can see to restrain the lien, for work done on each house, to the lot on which the house stands.

But in either case, I am not able to see any occasion which two plaintiff has for relief in equity. If his lien is, as he says it is, superior to all the different conveyances, he has nothing to do but take his judgment and levy on each lot for the amount of his lien on that lot, leaving the various defendants to settle their conflicting rights among themselves.

So, if his lien is on the whole lot, for the whole amount of his claim, he may levy his execution on any part of it. If his lien is on the whole land, subject to the savings bank's mortgage, he may levy on the equity of redemption to the amount of his claim. If his lien is on each lot for the amount of labor laid out upon it, but still subject to the savings bank mortgage, he must of course levy on the equity of redemption to which his lien attaches; and as the bill states and the demurrer admits the value of each separate lot, and the amount of his lien upon each lot, there would seem to be no difficulty in satisfying his lien upon each lot, and holding the balance of the proceeds of the sale of the equity for the use of those to whom it belongs. The details of the contract are not before the court, so that we cannot undertake to decide, if the case called for such decision, which I think it does not, whether the lien attaches on the whole estate, or on each lot. In either case there seems no difficulty in satisfying the lien or liens, and leaving the defendants to settle their respective rights amongst themselves. At present I see nothing which requires the intervention of equity proceedings.

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Concurrence Opinion

In this case I think the plaintiff has a plain and adequate remedy at law. I see no reason why, in order to enforce his lien, he should not have attached the equity of redemption in the four lots, and the buildings thereon, described in his bill. It appears by the bill that the savings bank mortgage is dated July 24, 1874, and is for $1,000 and interest; that the plaintiff's claim is $699.66; and that lot No. 1 is of the value of $1,000, and the other four lots of the value of $3,100.

It is held, in Wall v. Robinson, 115 Mass. 429" court="Mass." date_filed="1874-09-04" href="https://app.midpage.ai/document/wall-v-robinson-6417741?utm_source=webapp" opinion_id="6417741">115 Mass. 429, that when labor is performed under an entire contract, in the erection or repairing of several buildings owned by the same person and situated on the same lot, a lien attached upon the whole estate for the value of the labor performed. And in Colley v. Doughty, 62 Me. 501" court="Me." date_filed="1870-07-01" href="https://app.midpage.ai/document/colley-v-doughty-4932543?utm_source=webapp" opinion_id="4932543">62 Me. 501, it is held that one who buys real estate, after the erection of a house thereon, is not a necessary party to a suit brought by the builder to enforce his lien upon the building, and the lot upon which it stands.

If those defendants who hold by deeds and mortgages subsequent in date to the date of the plaintiff's lien have any rights which the plaintiff is bound to respect, those rights can be adjusted after judgment against the defendants Colby and Blakeslee.

SMITH, J., concurred.

Demurrer allowed.