181 Mass. 181 | Mass. | 1902
This is a petition to enforce a mechanic’s lien upon land and a building for labor and materials furnished in the erection of the building. The petition was filed on March 7, 1891, the certificate having been filed on January 7, 1891. On February 9, 1891, a bond was filed in the registry of deeds, signed by the respondent Humphreys as principal, with three sureties, to dissolve the lien in accordance with the provisions of the R. L. c. 197, § 28, then found in the Pub. Sts. c. 191, §§ 42, 48. The condition of this bond is to pay the petitioners within thirty days after final judgment, $85,000, or so much thereof as may be necessary to satisfy the amount for
On August 2,1893, a suggestion of the death of the respondent was filed in this case, and no further proceedings were taken until March 26, 1900, when a motion was made that the present owners of the real estate, the sureties on the above-mentioned bond, and the' heirs at law of the respondent, be summoned to appear and take on themselves the defence of the suit. The motion was allowed as to the heirs at law, and denied as to the owners of the real estate and the sureties on the bond. The heirs at law appeared and answered, and a motion was then made to refer the case to an auditor. The judge found that the case was of ‘such a kind as should be heard by an auditor, and ruled that proper parties were before the court for further proceedings by the petitioners to obtain judgment, and reported to this court the question whether the case is now ripe for further proceedings without summoning other parties as respondents.
The attorney for the sureties upon the bond has argued before us as amicus curice that the respondent’s heirs at. law are not proper parties to represent the interests of those whom the petitioners seek to hold liable. The real estate was conveyed away by the respondent in his lifetime, his estate has been duly settled by the public administrator, no assets passed to his heirs, and so far as appears they have no interest to defend the suit. Since the lien was dissolved by giving a bond, the real estate has been free from that incumbrance, and the persons to whom it was conveyed cannot be affected by the proceedings in this case. The only persons interested to defend the suit are the sureties on the bond. The bond, under the statute, stands in the place of the real estate as security for the petitioners’ claim. The case should proceed to trial and judgment in the usual way, for
So ordered.