245 Mass. 14 | Mass. | 1923
This is a bill in equity to enforce a mechanic’s lien under the provisions of St. 1915, c. 292, as amended (now G. L. c. 254). A supplemental bill has also been filed by which the plaintiff seeks to satisfy his lien out of the surplus arising from the foreclosure sale under a prior mortgage on the premises. A judge of the Superior Court made certain findings and reported the case to this court.
The trial judge found the following facts: The plaintiff and the defendant Jackson (the owner of the premises) entered into a contract in writing for furnishing materials and performing and furnishing labor upon the property, which was then subject to a first mortgage for $50,000 held by the Guaranty Trust Company. Notice of the contract was filed in the registry of deeds on October 9, 1919, and before any material or labor had been furnished under the contract; thereafter, the plaintiff performed his contract so far as the condition of the premises permitted; he has performed labor and furnished materials amounting to $5,550, and has complied with the statutory requirements with reference to establishing his lien. . There is due him the
After the execution of the contract, a second mortgage was placed upon the property for $15,000 to one Baker. This mortgage was foreclosed by sale on January 20, 1921, and was bid in by the defendant Guaranty Security Corporation, which had also acquired the interest of the trustee in bankruptcy of the estate of Jackson (the former owner of the equity of redemption) by deed authorized by the United States District Court and duly recorded before foreclosure of the mortgage. On January 21, 1921, the trust company foreclosed the first mortgage on the property and sold it to the security corporation for $72,050. On February 11, 1921, a bond in the sum of $7,000 was filed by the security corporation, as owner of the premises, in which the plaintiff was named as the obligee, for the purpose of dissolving the hen sought to be enforced in this proceeding; the bond was approved by a judge of the Superior Court without notice to the plaintiff, and without his knowledge, and was filed by the security corporation in the registry of deeds on February 11, 1921; on February 17, 1921, a deed under the power contained in the mortgage was delivered by the trust company to the security corporation, and was thereafter recorded by the latter in the registry of deeds. On the same date the security corporation paid in cash to the trust company $50,484.91 — the amount due the latter under its mortgage; and also executed to the trust company a receipt for $21,565.09 •— the surplus from the foreclosure sale — and delivered to it another bond with sureties to indemnify the trust company from liability on account of the transaction. The trial judge further found that both corporations had notice of the plaintiff’s claim of lien; that the trust company relied on the record of the bond, approved by the court and filed in the registry of deeds “ in determining the right of said Guaranty Security Corporation to said surplus, and . . . [that it] had no knowledge of the circumstances surrounding the approval of said bond.”
Both corporations contend that the bond filed on February
The Guaranty Security Corporation had an interest in the property which entitled it to give a proper bond to dissolve the lien; it owned the fee subject to the first mortgage and the Hen of the plaintiff, and this situation existed up to the time when the deed under the power of sale was delivered. The foreclosure of the first mortgage did not operate to discharge the incumbrance of the Hen, but in equity it attached to the proceeds of the sale over the amount due on the mortgage and expenses of sale; the surplus remaining stood in the place of the property, and could be reached and appHed in payment of the amount of the Hen found to be due, unless and until a vafid bond had been approved and filed discharging the Hen. Wiggin v. Heywood, 118 Mass. 514. Knowles v. Sullivan, 182 Mass. 318. Maguire v. Spaulding, 194 Mass. 601. Stockbridge v. Mixer, 215 Mass. 415. As the Hen was not discharged by foreclosure of the mortgage, the question remains, whether it was discharged by the approval and fifing of the bond.
G. L. c. 254, § 14, provides: “In a bill in equity under section five, the court may, in its discretion, accept a bond, with sufficient surety or sureties, to dissolve the Hen of any creditor or all Hens, as to the whole or any part of the property, or any interest therein. Such bond shall be filed by the obfigor in the registry of deeds within ten days after its approval, and shall not dissolve the Hen unless so filed. It shaU be recorded, and may then be taken from the registry by the obligee.”
The condition of the bond is as follows: “ Now therefore, if the said principal obfigor shaH, within thirty days after the final judgment, in any suit which may be brought to enforce the aforesaid Hen, pay to the party claiming the same,
We are of opinion that the bond was not invalid because it did not follow the form prescribed in § 12 of the same chapter; whether that form would have been appropriate in the case at bar, need not be determined. The Guaranty Trust Company, which was not a party to the bond, had a right to rely on the record of its approval by the court, and was entitled, if not bound, to treat the incumbrance of the lien as dissolved. The contention of the plaintiff that if the lien was not dissolved by the foreclosure proceedings, and if the bond filed is valid, he is entitled to a decree against the surety under G. L. c. 254, § 12, is not tenable; the remedy there provided is to enforce a bond given under that section; as the bond under consideration was given under § 14, the remedy given in § 12 is not applicable.
It follows that the incumbrance of the lien was not dissolved in equity by foreclosure of the mortgage, but was discharged by the bond; the plaintiff’s remedy is by action
Ordered accordingly.
