Fitch v. Baker, 23 Conn. 563

Fitch v. Baker

23 Conn. 563 | Conn. | 1855

Waite, C. J.

It is claimed that the certificate of lien, filed in the town-clerk’s office, is void, because it recites two contracts, one in writing, and the other verbal, having rela*567tion to different subject matters, the erection of separate buildings, in separate localities.

This claim, we think not well founded. The certificate relates to liens, claimed upon one and the same lot of land, with the buildings thereon, and sets out the manner in which the liens originated, perhaps with more particularity, than was necessary. But the fact that they grew out of separate contracts can have no effect upon its validity, so long as both claims are upon the same property.

In this respect, the incumbrance is like two distinct and independent mortgages upon the same estate. In such case, it is almost the universal practice to bring but one suit for a foreclosure, and ask for a decree, upon the non-payment of both mortgages. To hold that, in such case, two suits would be necessary, would be oppressive upon the debtor,—subjecting him to unnecessary costs. Mix v. Hotchkiss, 14 Conn. R., 32.

Did it appear that the liens, created under these two contracts, were upon two distinct pieces of property, and that the lien created under the one contract, was upon property, separate and distinct from the property upon which the other lien arose, the case would be different. It would be like two separate mortgages, to secure separate debts, each covering a separate tract of land.

But the bill, in the present case, prays for a foreclosure of all the defendant’s interest in the whole property, and the decree is so made, and there is nothing shown, by which we can see that separate decrees could be made, or that one portion ought to be forfeited upon the non-payment of one claim, and another for the non-payment of the other.

Both claims, in our opinion, were properly embraced in the same certificate, and in the same suit.

2. In the next place, it is said, that it is neither averred in the bill, nor found by the court, that the defendant had any interest in the land and buildings upon which the liens are claimed.

*568The allegation in the bill is, that the buildings were erected upon a certain lot of land, the fee of which was in the wife of the defendant, he having only a life interest therein; and it is found by the committee and the court, that the title of the land was in the wife. Aside from the act of 1850, this would give him, at least, an estate for their joint lives; an estate, which he could convey, or mortgage, and which could be taken on execution. And, if he had any interest whatever in the property, it would justify a decree of foreclosure against him. Williams v. Robinson, 16 Conn. R., 522. Wooden v. Haviland, 18 Conn. R., 107.

But the defendant relies upon the act of 1850, which provides “ that all real estate, conveyed to a married woman, during coverture, in consideration of money, or other property, acquired by her personal services, during such coverture, shall be held to her sole and separate use.”

It has been holden that this statute is not retrospective in its operation. Plumb v. Sawyer, 21 Conn. R., 351. It creates an exception to the general rule, that the husband has a life estate in all lands owned by his wife in fee.

Hence, in order to bring the case within the provisions of that act, it is incumbent upon the defendant to shew, that the land was not only purchased with money earned by the wife, but that the purchase was made during the coverture, and subsequent to the passage of the act, which is a recent one.

But the defendant has set up no such claim, either in his answer, or his remonstrance, and by a recent rule, the court, in a suit in chancery, will not find any facts, not put in issue by the parties. Rules of Practice, chap. 20, § 3. 18 Conn. R., 378.

Under that rule, therefore, the superior court was perfectly justified in refusing to go into an enquiry, respecting a matter not put in issue, by the pleadings. The finding of the court is in perfect accordance with the allegation in the bill, that the fee of the land was in the wife,—and a general denial of *569the allegations in the bill did not render it necessary for the plaintiff to go farther.

3. It is finally said, that no lien can be acquired upon the life estate of the husband. But we see no foundation for this claim. Had the defendant given to the plaintiff a mortgage of all his interest in the property, such mortgage would unquestionably be good, and a bill for a foreclosure might be sustained upon it.

A mechanic’s lien, in many respects, resembles a mortgage. Neither will affect the rights of the wife, unless she so co-operates with her husband as to bind her estate. But so far as the interest of the husband extends, it will be as much bound, in the one case, as in the other. In the present case, the interest of the wife remains unaffected by the decree, the bill as against her having been dismissed.

"We are therefore of opinion that there is no error in the doings of the superior court.

In this opinion the other judges concurred, except Hinrian, J., who was disqualified.

Decree affirmed.