122 A. 349 | N.H. | 1923
"No lien shall be defeated by taking a note, unless it was taken in discharge of the amount due and of the lien." P. S., c. 141, s. 18. Whether the notes and acceptances were taken in discharge of the amount due and of the lien depends upon the understanding of the parties at the time. Calef v. Brinley,
"Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues — the writ and return thereon distinctly expressing that purpose." P. S., c. 141, s. 17. The Ferns' writ is claimed to be defective in that the mandate of the writ does not command the sheriff to attach the property upon which the lien is claimed for the purpose of securing it. The contention is supported by authority. Bryant v. Warren,
The question of priority between lienors is reserved by the court as an important question of law. Generally where different mechanics and material men are concerned in the construction of a building and the building when completed is not of sufficient value to meet all the charges of its construction, the building is sold and the proceeds divided pro rata among those whose labor and property contributed to its construction, regardless of whether the claims are for labor or for materials, or of the times when the several claimants entered into their contracts for what they did or furnished, or actually commenced the performance of their parts of the work, or of the furnishing of materials, or of the times when the various lien claims or notice were filed. 27 Cyc. 230, 231; 2 Jones on Liens (3rd ed.), s. 1492. This is the only equitable arrangement. "The building is the result of the labor and materials of various persons — material men, stone-masons, brick-layers, carpenters, painters, c. The work of some of these must precede that of others, but each contributes his proper share to the value of the structure. Its value, when finished, is derived from these several contributions. It is not the product of one man's materials, or another man's labor, but is the result of the contributions of all. All, then, should share in its proceeds, if it go to sale. There is no good reason why the man who, of necessity, or by accident, begins before another, should have priority. The painter and glazier may add far more to the value of the building than the mason who merely lays the foundation; yet, if priorities exist, he may get nothing whatever, while the latter is fully paid. The brick-layer and carpenter usually commence about the same time; and if priorities are allowed, the accident of one beginning a day before the other, may give him a ruinous advantage." Choteau v. Thompson,
Kendall v. Pickard,
When a question has been transferred "as being of legal importance," it has been considered, although its relation to the controversy is not entirely clear. Stavrelis v. Zacharias,
The Buffalo Forge Co. claimed a lien upon certain machinery and directed a special attachment, which appears to have been made. Under c. 41, Laws 1905, a lien may be had upon materials furnished as well as upon the building itself. The material so furnished and not incorporated into the building is covered by the lien of the material man furnishing the same. Virgin v. Britton,
Section 23, Chapter 140 of the Public Statutes prescribing the essentials to the validity of a lien reserved upon personal property sold conditionally and passing into the hands of the conditional purchaser as against attaching creditors, or subsequent purchasers without notice, has no extra-territorial effect. A conditional title valid where created is valid here, despite non-compliance with the New Hampshire statute. Davis v. Osgood,
The property claimed by the Emerson Dry Kiln Co., Inc., has not been affixed to the real estate and has not been attached by any creditor. Even if the sale were made in this state the petitioner's title would be valid against all the parties to this proceeding.
In the absence of a specific attachment the marking machine stands the same unless the attachment of the real estate is a seizure of the machine. As the New Hampshire statute has no application, it is unnecessary to consider whether, if applicable, the property comes within its terms.
Case discharged.
All concurred.