This is an action to foreclose two mortgages
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, 42 Conn. 95; Botsford v. NewHaven, M. W. R. Co., 41 id. 454; Boisot on Mechanic's Liens, §§ 157-301.
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, 43 Conn. 143; Middletown Savings Bank
v. Fellowes, 42 id. 36. Whether, by reason of his equitable interest in this property, Pratt could make a building contract
under which Grady and Igo could acquire a lien upon the land which would take precedence of the $1,500 mortgage, depends, therefore, upon the extent of the estate which the agreement between Sheldon and Pratt shows was intended to be conveyed to Pratt by the deed to be given to him. Boisot on Mechanics' Liens, § 305. If this agreement could be considered as simply providing for a conveyance of the land to Pratt and a mortgage back of Sheldon for the purchase price, as a part of the same transaction, and as granting no power to Pratt to do any acts before the title vested in him which might create a lien upon the land, the mere instantaneous seisin of Pratt upon the delivery of the deed and before the giving of the mortgage, would not give the liens priority over the mortgage in question. The operation of the warranty deed and the mortgage would be contemporaneous, and there would be no opportunity for a lien to attach to the estate conveyed to Pratt before the reconveyance to Sheldon by the mortgage deed. Middletown SavingsBank v. Fellowes, 42 Conn. 36; Boisot on Mechanics' Liens, § 156; Phillips on Mechanics' Liens, § 246. But this agreement is something more than a bond for a deed. It not only provides that Pratt shall build a dwelling-house upon the land, but also that the deed of the property shall not be delivered to him "until a dwelling-house of two tenements shall have been begun on said premises and the roof of the same is on and finished." That part of the building thus described was, by the express terms of the agreement, required to be built by the vendee Pratt, while the title remained in the vendor Sheldon, and its construction by Pratt to that extent was necessary to the perfection of his equitable title to the property. It was in effect a part of the purchase price to be paid to Sheldon. Sheldon was to convey the land to Pratt with a partially completed building upon it, which Pratt had been required to construct, and Sheldon was at the same time to receive a mortgage back of the land with at least such described part of the building upon it. As the property to be conveyed to Pratt was to include the partly finished building to be erected by him before receiving his
deed, his equitable interest in the property was such, when he contracted with Grady and Igo, that under such contracts, the deed having afterwards been delivered to Pratt, they could enforce their liens against the property as prior liens to the second mortgage, for such work and materials as were necessarily furnished in carrying forward the building to the finishing of the roof according to the plans and specifications referred to in the agreement. In other words, the estate which was to be conveyed to Pratt by the warranty deed, as well as that which was to be conveyed to Sheldon by the $1,500 mortgage, were, by the effect of the provisions of the agreement, to be subject to such liens as would necessarily be created by the construction of that part of the building which was required to be completed by Pratt before the warranty deed and mortgage could be given. Botsford v. NewHaven, M. W. R. Co., 41 Conn. 454.
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, 43 Conn. 143;Hooker v. McGlone, 42 id. 95. And, furthermore, they failed to give the required notice to Sheldon of their intention to claim a lien upon his lands. They made no agreement with Sheldon, nor with any one having authority from or rightfully acting for him, in furnishing labor and materials for a building upon his land, other than those which were to be furnished in erecting the building to the completion of the roof; nor was the agreement for the sale of the land, or the provision therein requiring Pratt to complete the building after he became entitled to a deed, such a consent by Sheldon to the furnishing of labor and materials, beyond what was required for the erection of the building to the finishing of the roof, as gave to Grady and Igo lien upon Sheldon's estate for such labor and materials. The consent
given by Sheldon by the written agreement was, that the remainder of the labor and materials required for the completion of the building beyond the partial construction described in the contract, should be furnished not at Sheldon's expense or upon the credit of his estate, but at the expense of Pratt and upon the credit of the interest which he was to have in the land after the giving of the $1,500 mortgage.Lyon v. Champion, 62 Conn. 75, 76; Huntley v. Holt, 58 id. 445.
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, 14 Conn. 271.
There is error and a new trial is granted.
In this opinion the other judges concurred.