38 Md. 288 | Md. | 1873
delivered the opinion of the Court.
The main question presented by the record in this case is, whether the mortgages or the lien claims are entitled to priority. The proof shows that the appellant Jean, William F. Burns and Samuel Meakin were the owners of certain lots in Baltimore city, fronting on the south side of Boundary Avenue, and that these lots were of such grade with regard to the adjoining streets and avenues,
The 15th section of Article 61 of the Code, provides that, “The lieu hereby given shall be preferred to all mortgages, judgments, liens and incumbrances which attach upon the said building or the grounds covered thereby, subsequently to the commencement thereof, and all the mortgages and liens other than liens which have attached thereto prior .to the commencement of the said building, and which by the laws of this State are required to he recorded, shall he postponed to said liens, unless recorded prior to the commencement of said building.”
It was contended by the counsel of the lien claimants that the foundations put in by the lessors of J. Thomas Lester, in the ['all of 1869, constituted the commencement
In the case of Brooks vs. Lester, 36 Md., 69, 70, this Court has said, quoting from Pennock vs. Hoover, 5 Rawle, 308, “that the first labor done on the ground, which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction, constitutes the commencement of the building.” The cases of American Fire Ins. Co. vs. Pringle, 2 Seargt. & Rawle, 138 ; Pennock vs. Hoover, 5 Rawle, 308 ; Horn vs. Hopkins, 13 Seargt. & Rawle, 269, and Seargt. Mechanics Lien Law, 167, 168, are to the same effect, and they are relied upon by the counsel of the lien claimants as conclusive of this question in their favor. While this Court, in the case of Brooks vs. Lester, declared what work should be regarded as the commencement of the building, as above recited, it decided that the building had not been commenced at the time the mortgage was recorded, nothing having been then done except to drive some pegs in the earth to mark where the foundations were to be dug. In ■ the Pennsylvania cases, above cited, it appears that the work, which was held to be the commencement of the buildings, had been done with the intention and purpose, then formed, to continue the work to the completion of the buildings. Where work is done with the design to go on and construct a building, there can be no question that it must, be regarded as the commencement of the building; and in such case all liens attaching subsequent thereto would, under the provision of the lien law, be postponed to the liens of mechanics and material men who might bestow labor or furnish -materials for the construction of the building. The work done before the recording of the mortgage, so as to give mechanics liens priority, must, however, be the com
We have carefully examined the liens of the appellees and the evidence relating to them, and concur in the views of Judge Pinkney as to their validity as expressed in his opinion.
Upon the appeal of Hirshberg & Co., and McShane & Co., assignee of Shorey & Eigelberner, the decree of the Circuit Court will be affirmed. In the case of the former it 'appears that they furnished the articles charged in
The decree appealed from will be reversed in part and affirmed in part, and the cause remanded for further proceedings in conformity with the views expressed in this opinion.
Decree affirmed, in part, and reversed in part, and cause remanded.