53 Pa. Super. 611 | Pa. Super. Ct. | 1913
Opinion by
This is a scire facias upon a mechanic’s lien, in which the plaintiff recovered a verdict and judgment in the court below and the defendant Herkness, the present owner of the property, appeals. Montayne had contracted with Gundlach to erect a building upon land of which the latter was the owner. Heist became a subcontractor under Montayne, furnishing to the latter material for the building, the last item of said material being furnished on August 15, 1910. Montayne having failed to make full payment to Heist for the material so furnished, the latter, on February 11, 1911, filed the claim upon which this proceeding is founded. The claim when filed failed to aver that the claimant, a subcontractor, had given notice to the owner of his intention to file a lien. Gundlach, on April 4, 1911, conveyed the property to Herkness, who on the eleventh of the same month presented his petition for leave to intervene in the action and moved the court to strike off the claim, for the reason that it failed to aver that notice had been given to John Gundlach, the owner, of any intention to file a lien. The court permitted Herkness to intervene in the action and defend, and granted a rule on the claimant to show cause why the claim should not be stricken off. The plaintiff filed an answer alleging that Herkness was not the owner of the premises, but the custodian of the title for Gundlach, and that the former had paid a mere nominal consideration for the property. The answer further averred that due written notice of the intention to file said lien had been given to and served upon John Gundlach, the owner, in accordance with the provisions of the statute, on November 14, 1910, and prayed for leave to amend the claim, or hen, by adding thereto an averment that such written
The lien as originally filed was not self-sustaining, the failure to aver notice to the owner of an intention to file a lien was a material defect, and if it was not a subject of amendment, after the expiration of the time when a valid lien could have been filed it should have been stricken off: Bametzrieder v. Canevin, 44 Pa. Superior Ct. 18. Was the amendment in this case properly allowed? The amendment was clearly within the scope of the provisions of the fifty-first section of the Act of June 4,1901, P. L. 431; Thrisk v. Evans, 211 Pa. 239. It is suggested, on behalf of Herkness who was alleged to have purchased after the lien was filed, that this section of the statute cannot be invoked against him, for the reason that it expressly provides that “Such amendment shall be of right, saving intervening rights.” The argument is that Herkness, as a purchaser, has an intervening right which is prejudiced by the allowance of the amendment making the lien valid. The plaintiff in his answer to the rule obtained by Herkness explicitly asserted that Herkness was not a bona fide purchaser. The deed under which Herkness took the property recited a nominal consideration of $1.00. In order to meet the allegation of plaintiff’s answer the deposition of Herkness was taken, and he testified that he had agreed to pay $4,200 for the property, of which amount he had paid $200 in cash and had given a mortgage in the sum of $4,000 for the balance which he was to pay. The equity of a purchaser arises out of his having paid the purchase money; the unpaid balance of purchase money in his
But it is argued that if the fifty-first section of the Act of June 4, 1901, P. L. 431, be construed to mean that an amendment of this character may be allowed after the expiration of the six months within which a valid hen could have been filed, the effect is to extend the period after the completion of the work on a building within which a lien can be filed, and that this is in conflict with sec. 7, art. Ill, of the constitution of 1874. Several of the provisions of the act of 1901 have been held to violate this provision of the constitution, and after reviewing those decisions it was said by Mr. Justice Potter, in Page v. Carr, 232 Pa. 371, “The result of the decisions above noted, is to make it clear that any provision of the act of 1901 which is clearly divergent from and is an advance upon the law as it stood prior to the constitution of 1874, is to be regarded as invalid.” These decisions are referred to in the opinion of President Judge Rice in the cases of Sumption v. Rogers, 53 Pa. Superior Ct. 109, and Malone v. Hosfeld, 53 Pa. Superior Ct. 134. In Sumption v. Rogers, we held that a lien which, prior to the constitution of 1874, would have been held to be defective in substance, in a material part, going to the jurisdiction, could not be amended after the time allowed by the statute for filing had expired, although the more liberal provisions of the act of 1901 might have permitted such amendment. The provisions of the act of 1901 with regard to amendments cannot be made effective, after the expiration of the time during which a valid lien must be filed, to save or resuscitate a lien which would have under, previous legislation
The judgment is affirmed.