Ely v. Wren

90 Pa. 148 | Pa. | 1879

Mr. Justice Sterrett

delivered the opinion of the court,

The record in this case presents a seriés of irregularities and errors, some of which are fatal to the lien. When a special security and remedy are given to a favored class of creditors it is not asking too much to require them to conform with reasonable accuracy to the provisions of the law designed for their benefit. If this is done, unnecessary complications, involving disinterested parties in litigation and imperilling the rights of creditors and others may be avoided. The property against which the lien is given should be so accurately described that when judgment is obtained on the scire facias, the writ of levari facias, following the claim, may so designate the property and extent of the interest therein to be sold, that a separate schedule will not be required for the guidance of the sheriff.

The plaintiff below undertook to file a lien under the Act of February 17 th 1858, entitled, “An Act relative to Mechanics’ Liens in the counties of Luzerne and Schuylkill,” which extends the provisions of the Mechanics’ Lien Law “to all improvements, engines, pumps, machinery, screens and fixtures, erected or put up by tenants of leased estates on land of others in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material-men doing work or furnishing the articles or materials therefor.” This act was subsequently extended to Carbon county. By the express terms of the proviso, the lien thereby “ created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens and fixtures, erected, repaired or put up by mechanics, machinists, persons or material-men entering liens thereon.” The lien is thus limited to the interest of the tenants in the specific improvements and machinery upon which the services and labor are bestowed or for which materials are furnished: St. Clair Coal Co. v. Martz, 25 P. F. Smith 384.

From the statement in this case it appears that the claim was filed against the “improvements, engines, pumps, machinery, screens and fixtures erected or put up on the aforesaid leasehold estate of E. B. Ely & Go. and the interest of E. B. Ely & Co., tenants, in and to the said improvements, engines, pumps, machinery, screens and fixtures, and their interest in and to so much other improvements, engines, pumps, machinery, screens and fixtures, &c., immediately adjacent thereto, as may be necessary for the ordinary and useful purposes thereof.” The claim was thus filed not only against the interest of E. B. Ely & Co., in the improvements, engines, &c., but against the improvements, engines, &c., themselves ; and also against a number of undefined structures and articles adjacent thereto, upon which it is not claimed that any work was done, or for which any materials were furnished by the claimants. It was not confined, as the act provides, to the specific improvements upon which the work was done, or for which materials were furnished. Appended to the claim is a schedule, entitled, “list of machinery on premises of E. B. Ely & Go.” Presumably this was intended to designate all the machinery on the leasehold premises. Certain articles of machinery in the list have the name of the claimant written opposite them, and in a few instances there is added to the name a memorandum of articles and materials. From this it might possibly be conjectured that the claimant performed work upon or furnished materials for the machinery thus designated by his name; and, where particular articles are mentioned in the memoranda attached to his name, it might perhaps be inferred that the specific articles were furnished; but, after all, it would be only a matter of inference or conjecture. There is an entire absence of that certainty and precision which should characterize a statement that forms the basis of a special lien, which, if not otherwise satisfied, is designed to be enforced by a judicial sale, resulting in a transfer of title. The proceeding is in rem, and the claim should be so certain and definite as to indicate with at least reasonable precision the property that is to be subjected to the lien, and the extent thereof. Without this it fails to furnish -sufficient. data for the entry of a judgment upon which the levari ■must issue for the sale of the property. In this case the claim as filed was incurably defective, and wholly insufficient to justify the • court in entering judgment for want of an affidavit of defence. There was no act done or omitted to be done by the defendants below that could 'have the effect of waiving these defects. Their failure to file an affidavit did not do so. It was, of course, informal to enter judgment against the defendants personally, in such a proceeding; but if there was no other difficulty in the way, this ' might be treated as aprended.

The judgment is reversed and set aside, and it is now ordered that the lien be stricken from the record.