Driscoll v. Floyd

217 Mass. 33 | Mass. | 1914

De Courcy, J.

The respondent asked the trial judge to rule as follows: “The description of the land in the statement of lien does not contain a description of the property intended to be covered by the lien sufficiently accurate for identification and the petition must be dismissed.55 The requirement of the lien statute on this subject is that the statement, which must be filed in the registry of deeds, shall give “a description of the property intended to be covered by the lien sufficiently accurate for identification;” and it further provides that “The validity of the lien shall not be affected by an inaccuracy in the statement relative to the property to which it attaches, if such property can be reasonably recognized from the description.” R. L. c. 197, §§ 6, 7. It was said by this court in Dodge v. Hall, 168 Mass. 435, that “a description is sufficient which will enable one who is familiar with the locality to identify the land with reasonable certainty; and inaccuracies will not vitiate the lien, if the land can be so identified.” In that case the question arose under the petition to enforce the lien, which the statute required to contain “a description of the premises subject to the lien.” Pub. Sts. c. 191, § 13. R. L. c. 197, § 9. In Cleverly v. Moseley, 148 Mass. 280, tile statement identified the lot by the house thereon, "the first two stories being of stone and the third story of wood, the same being the first house on Englewood Avenue from Roxbury Avenue.” In fact the house was not on the line of Englewood Avenue, but about three hundred feet northerly thereof, and another house was being erected nearer to Roxbury Avenue. In that case the limits and boundaries of the lot were not set out in the statement, but this the court said was “immaterial, if, upon identifying the place, they could with reasonable effort have been otherwise ascertained,” as from "the way in which the land was used, or from recorded deeds, or in some other way.” And it was further said that it was for the jury “to interpret the evidence, and apply the description to it, and determine upon the facts, as they might find them, whether the lot could have been reasonably recognized from the description taken as a whole.” See also York v. Barstow, 175 Mass. 167; Lays v. Hurley, 215 Mass. 582.

In the case at bar the lot of land on which the labor and materials were furnished and used in the construction of buildings, was described in the statement as follows: “Southerly by Kenwood Street in Brookline in the County of Norfolk, easterly, westerly and northerly by land now or late of David S. Coolidge. Being lots on a plan numbered 14,15,16 and 17. The buildings thereon in process of construction are numbered 73 and 77 on said Ken-wood Street. Said lot of land being owned to the best of my knowledge and belief by Lillian M. Floyd of Waltham, Massachusetts.” This directs us to the northerly side of Kenwood Street in Brookline, and to a lot of land on which there are buildings in the process of construction, which are numbered 73 and 77 on that street. This would seem enough to identify the lot even without the additional fact that the lot in question is owned by Lillian M. Floyd, and so far as appears is the only land owned by her on that street. For the boundaries of the lot we may properly refer to the defendant’s deed, which is in evidence. The jury have answered the third and fourth issues under instructions to which no exception was taken. They have found that the description was sufficiently accurate for identification; and plainly we cannot say as matter of law that they were wrong.

The respondent was not entitled to the second ruling requested. As above appears, the jury were warranted in finding that the land was sufficiently described in the statement. The petition to enforce the lien must be considered on its own merits. The sufficiency of the description contained therein is apparent on inspection. Even if there had been an error in the petition, the court might have allowed an amendment; as was done in this case. B.. L. c. 197, § 14. Lummus on Liens, § 277. Buck v. Hall, 170 Mass. 419.

Exceptions overruled.