49 A. 905 | Conn. | 1901
This is an action to foreclose two mortgages *117 the first of $3,600 and the second of $1,500. The question involved is one of priority of liens. The plaintiff claims that both of her mortgages should take precedence of the two mechanics' liens of the defendants Grady and Igo, while they contend that their liens should be given priority over the plaintiff's second mortgage. No question is made as to the priority of the first mortgage. The services and materials for which the liens are claimed were mostly rendered and furnished by Grady and Igo, while the legal title, subject to a mortgage to the plaintiff of $3,000, as appeared of record, was in Sheldon; and were all so rendered and furnished under a contract with the defendant Pratt, who was in possession under an agreement of purchase with Sheldon. The services were not rendered with the consent or authority of Sheldon, except as appears by the agreement between him and Pratt, and no notice was given to Sheldon that Grady and Igo intended to claim a lien. These services seem to have been rendered upon the personal credit of Pratt, and upon the credit of the estate which Grady and Igo supposed Pratt was afterwards to acquire from Sheldon.
Under these circumstances, although Pratt had not received a deed of the property, he yet had under his contract of purchase such an equitable interest in the land as would make him so far an owner under our mechanic's lien acts that he could make a building contract under which a lien might attach, to the extent of the estate which he was to acquire, and afterwards did acquire, under his contract of purchase.Hooker v. McGlone,
A mere agreement to sell land does not of itself give to the vendee such an equitable estate in the property as to enable him to create a lien as owner which would effect the vendor's title, even if the materials for which the lien is claimed were furnished with the owner's consent. McGinniss
v. Purrington,
Beyond the charge for labor and materials necessary to the erection of the building to the completion of the roof, as above stated, the mechanics' liens in question do not take precedence of the second mortgage.
By their contract with Pratt, Grady and Igo acquired no lien as subcontractors, since, under his agreement with Sheldon, Pratt was not an original contractor within the meaning of the lien law. McGinness v. Purrington,
It does not appear by the finding that the labor and materials for which Grady and Igo claim liens were necessarily furnished, or were by the plans and specifications required to be furnished, for the erection of the building up to the finishing of the roof. It is found that Grady and Igo were contractors on the house, and that Igo had the contract for heating. It is stated in defendants' brief that Grady had the contract for the plumbing. It appears that nearly all of their work was performed before the delivery of the deed and mortgage on the 28th of September, but that both did work after that date. Whether the building was completed beyond the finishing of the roof when the deeds were delivered, does not appear.
We think there was error in the judgment giving the mechanics' liens precedence over the second mortgage, upon the facts found, and that a new trial should be granted.
There was also error in the refusal to find, as requested by the plaintiff, that the four deeds which were placed in the hands of Morse, were delivered to him as escrows. The evidence before us shows that they were placed in his hands and not to be delivered until Pratt should become entitled to his deed by the performance of the conditions of the agreement of sale. White v. Bailey,
There is error and a new trial is granted.
In this opinion the other judges concurred.