15 Gratt. 83 | Va. | 1859
The jurisdiction of this court in this case is, I think, clear and unquestionable. Assuming that the matter in controversy is merely pecuniary, it is not confined to the amount claimed by the appellee but embraces also the amounts claimed by the Building fund company and for which as. they allege they are entitled to priority of payment out of the proceeds of the subject. These alone exceed the sum necessary to give the jurisdiction.
There is as little doubt, I think, of the jurisdiction of the court of equity in the matter of the bill. Its jurisdiction is denied by the counsel for the appellant upon his construction of our act creating the “ mechanic’s lien,” Code, ch. 119, § 2, p. 510; and if his construction were correct, there would be grave doubt of the right of a party claiming as assignee of such a contract as that which is the foundation of the appellee’s demand, to come into equity to obtain payment of such of the installments as had become due merely upon the ground that he was assignee. But I do not think the construction contended for is correct. The act first declares that there shall be a lien for the money agreed to be paid upon a contract for erecting or repairing any building, &c. from the time that the same is duly admitted to record, and then provides that “ the said lien shall not be in force more than six months from the time when the money or the last installment of the money, to be paid under such contract, shall become payable, unless a suit in equity to enforce the lien shall have been commenced within
Thus it will be perceived, as I think, that these cases all differ in their distinctive features from our case and give but little aid in settling the true construction of our act. Nor have I seen any sufficient
But the counsel for the appellants goes still further and insists that there never was a lien at all because the contract was not acknowledged by laege and admitted to record for the purpose of creating a lien, nor did he know that such would be the effect. Or if it must be held that there is a lien, that it is not assignable and consequently the appellee has no footing in court to enforce it for bis benefit.
Nothing is said in the act about the intention with which the contract is admitted to record, nor is any certificate required of the purpose for which it may be acknowledged or recorded. The appellee, it appears, who was to advance the money refused to do so unless the contract was recorded, and to overcome this difficulty, laege went to the clerk’s office and acknowledged it for that purpose. No fraud or imposition is alleged to have been practiced upon him, and his ignorance of the legal consequences of recording the contract cannot prevent the lien from having effect. Otherwise it would be a fraud upon the appellee who has advanced his money upon the faith of the rights thereby acquired. I think it clear therefore that the party must be deemed when he acknowledged the contract and assented to its being recorded, to have known that it would create a lien or at least that
Nor do I think that the position taken by the coungej ^at such a lien is not assignable can be maintained. By the act of 1819 it is declared that assignments of all bonds bills and promissory notes and other writings obligatory whatsoever, shall be valid; and that an assignee of any such, may thereupon maintain any action in his own name which the original obligee or payee might have brought. 1 Rev. Code 1819, p. 484, § 5. In the Code of 1849, the declaration that such assignments shall be valid is omitted, and it is simply provided that the assignee of any bond, note, or writing not negotiable, may maintain thereupon any action in his own name which the original obligee or payee might have brought; the revisors, I presume, supposing that to give the action to the assignee in his own name sufficiently affirmed the validity of the assignment without any express declaration to that effect. Code, ch. 144, $ 14, p. 583. Now I see no reason why the assignee in this case could not maintain an action at law in his own name upon this contract. It seems to me to be fully embraced by the terms of description both in the Code of 1819 and that of 1849. But if this may be questioned, no reason is shown why it may not be regarded as assignable for value in equity. It is said and authorities have been cited to show, that such a statute is to be construed strictly, and it is contended that it is intended exclusively for the beneiit of the builder and material-man. No case has been cited affirming that a contract under such a statute cannot be assigned. There is nothing in public policy or in the language or the policy of our act to forbid it; and if the statute be exclusively for the benefit of the builder and material-man it would certainly impair the value of his lien to declare
I can perceive no reason for distinguishing between contracts of this character and other choses in action ex contractu in respect of the right to assign them. And it cannot be doubted that when the assignee takes the contract, he acquires with it the lien as a necessary incident.
I proceed next to consider the complaint made of the amount for which the decree was rendered.
By the contract the work about the bouse was to be executed in a workmanlike manner, whilst the proofs in the cause tend strongly to show that it was in fact executed in a very defective and unworkmanlike manner. It is proven that the doors were very much cracked (one of the witnesses says “ cracked to pieces”) and that they were too small from shrinking, were made of green or wet timber and that numerous holes were found in them; that the staircase had given way and the steps had sunk from a half to three-fourths of an inch below the skirting; that the wash-boards had left the floors or the floors had sunk from half an inch to an inch; that the mantles were badly executed and much shrunken; that the plastering was not well done, that the weather-boarding was very much split and shrunken for want of a sufficient lap and that the piazza in the rear was badly and improperly constructed. All the witnesses examined upon the subject agreed that the materials must have been green
If the price of the work had been fixed in the contract and the party had paid it immediately on its completion, or if he had been sued and judgment recovered for the amount before the faulty and defective workmanship had discovered itself, it will scarcely be said that he would have been thereby deprived of the benefit of his contract for work done in a workman
The case of Kidwell v. The Balt. & Ohio R. R. Co. 11 Gratt. 676, has been cited by the counsel for the appellee upon this point; but it will be found I think upon examination to decide nothing incompatible with the conclusion I have arrived at in this case. That was a bill filed to obtain compensation for extra work and deficiencies in estimates of the value of work done, upon certain contracts for the construction of bridges on the line of the company’s road. These contracts provided for monthly estimates to be made of the quantity character and value of the work by an engineer designated, and when the work should be fully completed and accepted by the engineer, for a final estimate of the same, when the balance appearing to be due was to be paid to the contractor upon his executing a release of all demands against the company. There was a further provision that these estimates should be conclusive between the parties unless altered by the principal engineer to whom power was reserved to review the same and make alterations if he should choose to exercise it. The complaint on this branch of the cáse was that the estimates had all been made upon an improper and erroneous construction of the contracts, to the great prejudice of the contractor, and that he should not be bound by them on that account and also because of fraud and mistake imputed to the officers in effecting the contracts and making the estimates. The court held that neither fraud nor a mistake was made out in proof, and that in the absence of both, the final estimate of the engineer was conclusive between the parties. It vías also held that whatever might be the true construction
It is contended on behalf of the Building fund company that they were entitled to priority of payment out of the proceeds of the sale of the property, both as to the one hundred and twenty dollar's advanced to laege before the building contract was recorded, and the four hundred and sixty-one dollars advanced and paid to the appellee afterwards; and on behalf of both the appellants it is insisted that the Circuit court should have so adjudicated before it directed a sale of the property.
The counsel for the appellee does not contest the priority claimed for the one hundred and twenty dollars, and he contends that upon the face of the commissioner’s report and the decree of which it is the basis, this is impliedly conceded and should be regarded as sufficiently recognized: but he does contest the priority claimed as to the four hundred and sixty-one dollars paid after the building contract was re
It is a well settled rule that where there are conflicting claims to priority of payment out of the proceeds of land about to be sold to satisfy the liens upon it, the court in order to prevent the danger of sacrificing the property by discouraging the creditors from bidding as they probably might if their right to satisfaction of their debts and the order in which they were to be paid out of the property, were previously ascertained, should declare the order of payment before it decrees the sale to be made. Cole's adm'r v. McRae, 6 Rand. 644; Buchanan v. Clark, &c., 10 Gratt. 164. It is therefore not sufficient that the court should direct the fund to be paid into court and should declare the priorities afterwards. The purpose for which it is done requires that it should precede the sale.
I do not see any thing in the report of the commissioner or the decree of the court confirming it which amounts to a declaration or recognition of the priority of the Building fund company even as to the one hundred and twenty dollars. The report simply states the facts, and the decree, after confirming the report, directs that if the balance stated to be due the appellee be not paid within ninety days with interest and costs, the property should be sold and the proceeds after paying the costs and expenses of the sale, paid into bank to the credit of the cause. Nothing is said in it in relation to either claim of the Building fund company, and the failure to adjudicate as to the order of payment is, I think, a material error in the decree.
As to the Building fund company’s right to priority as to the one hundred and twenty dollars, no objection
I think therefore the Building fund company is entitled to priority in payment of the proceeds of the property as well of the four hundred and sixty-one dollars advanced in redemption of stock as of the one hundred and twenty dollars advanced in that way at the time the deed of trust was executed.
There are two other points which perhaps should be briefly noticed.
An exception was taken to the paper offered as evidence of the measurement and valuation of the work by the referees because it purported to be a copy and not the original. This exception is without date and it does not appear when it was in fact taken. But the paper was filed as an exhibit with the bill and although the answers are very full and elaborate no objection is taken to the paper on that account nor is any call made in them for the original. The paper was also received by the commissioner as evidence, there was no call made for the production of the original before him nor does he report that any objection was made to the paper because it was but a copy. The exception therefore either came too late or must be regarded as having been waived by the parties, and it was properly disregarded by the Circuit court.
The remaining point relates to the contingent dower interest of the wife of the appellant Iaege in the property. It is said that this was not affected by the mechanic’s lien, and that the court therefore should not have sold the entire estate, but only the interest of Iaege. That the mechanic’s lien does not override the dower interest of the wife is very clear, and if any authority to the point were needed, it would be found in Shaeffer v. Weed, 3 Gilm. 511. But Mrs. Iaege had united with her husband in the deed of trust for the
I am of opinion to reverse the decree and remand the cause for further proceedings.
The other judges concurred in the opinion of Lee, J.
The decree was as follows:
The court is of opinion that the Circuit court did not err in maintaining the jurisdiction of the court of equity to grant the relief prayed for by the bill, nor in disregarding the exception to the copy of the measurement and valuation of the referees filed as an exhibit with the bill, nor in holding the appellee entitled to a decree for all of the installments of the price of the work although part thereof only became due pending the cause. But the court is of opinion that before decreeing a sale of the property, the Circuit court should have directed an enquiry by a commissioner into the alleged defects in the work done in the execution of said contract which were disclosed and became apparent after the valuation made by the referees, and should have ascertained what would be a just compensation to the appellant laege for such defects, and should have caused the same when so ascertained to be accounted for out of the balance due the appellee if sufficient to satisfy the same, before any amount should be decreed to him on said contract.
And the court is further of opinion that it was proper the said property should have been decreed to be sold out and out, but that inasmuch as the wife of the said laege is entitled to a dower interest in the equity of redemption after satisfying the purposes of the deed of trust, and as she is a party to the cause the court should make a suitable provision for the preservation of such dower interest out of the surplus proceeds of sale after satisfying the demands of the Building fund company, before any part thereof should be paid over to the appellee.
Wherefore the court is of opinion that there is error in said decree.
Therefore reversed with costs and remanded with instructions further to proceed in the same according to the principles herein before declared.
Decree reversed.