Hinckley & Egery Iron Co. v. James

| Vt. | Oct 15, 1878

The opinion of the court was delivered by

Royce, J.

The bill in this case was brought to enforce a mechanic’s lien. The contract which the orator made for doing the labor and furnishing the materials for which they claim to have a lien, was made with the defendant James while he was in possession of the premises upon which the labor was bestowed, and in doing which the materials were furnished. The premises were then mortgaged for more than their value, and the mortgages were owned by the defendant Stetson. The defendant James filed a disclaimer, and the bill as to him was, by consent of the orator, dismissed. The orator asks that its lien be declared to be prior to the lien of the defendant Stetson acquired by virtue of the prior mortgages upon the premises, or that its lien may be declared to be a specific lien upon the materials put into the mill on said premises by it, and upon the machinery in said mill repaired by it; and that the same may be ordered to be1 sold, and the proceeds applied in payment of its said claims.

Most of the time employed in the hearing has been occupied by counsel in able and ingenious argument upon questions concerning the validity and formality of the proceedings instituted and carried on by the orator to perfect its' lien. In the view we have taken of the case there is no necessity to pass upon those questions ; for the right of the orator is dependent upon the construction that may be given to the statutes under which it claims the liens.

Section 3 of c. 108 of the Gen. Sts. provides that when any contract or agreement shall hereafter be made for erecting, repairing, or altering any house or other building, or for furnishing labor or materials for the purposes aforesaid, the person proceeding in pursuance of such contract or agreement shall have a lien to secure the payment of the same upon such house or building, and the lot of land upon which the same stands, and provides that such lien shall not attach thereto until the person claiming the lien shall have filed and caused to be recorded in the town clerk’s office in the town where such house or other building is situated, a written memorandum, by him signed, asserting such claim. Section 4 provides for the institution of a suit and obtaintaining judgment to determine the amount to which the party is entitled, and gives him the same remedy to obtain possession and to foreclose the defendant’s equity of redemption and perfect his own title as in case of a mortage.

The above sections were not changed or altered by the act approved November 4, 1863, except in enlarging the property upon which a lien might be made to attach by adding to the description of property any saw mill, grist mill, or factory, and any water wheel or steam engine erected within or near the same to be used for the purpose of operating machinery therein. The evident purpose and intent of the law was to give to the party who had filed a proper memorandum in the proper office all and the same rights as a mortgage would give him, executed at the time of filing the memorandum. The ‘remedy provided is as of a mortgage. It could not have been contemplated that vested equitable liens could be destroyed or impaired by any such proceedings. This we understand tó have been the construction given to the statute in Kenney v. Gage, 33 Vt. 302" court="Vt." date_filed="1860-11-15" href="https://app.midpage.ai/document/kenny-v-gage-6577041?utm_source=webapp" opinion_id="6577041">33 Vt. 302, in which it was held that a mechanic’s lien under the statute stands upon the same ground as a mortgage would if executed at the same time of the filing of the claim, and affects existing rights, whether legal or equitable, to no greater extent than such mortgage would affect them.

Whatever had been so attached to the reaíty as to become a part of it at the time of filing said claims, the defendant S.tetson had a lien upon by virtue of his mortgages, which was superior to the right of the orator, and the only right the orator obtained was to redeem said mortgages.

In relation to the property described in the bill that it is claimed was not attached to the realty, it is sufficient to remark that the statute has not made any provision for acquiring a lien upon such property in the manner here attempted. Such property is subject to attachment and sale.on execution as personal property!

The orator has not shown any right to equitable relief, and the decree of the Court of Chancery dismissing the bill is affirmed with costs, and cause remanded.