25 N.J. Eq. 242 | New York Court of Chancery | 1874
.The only question raised in this cause, (which is submitted on a “ state of the case ” agreed upon,) is whether the complainant’s mortgage is entitled to priority over the lien claim of Preston Graham. By an agreement made between Edgar Tucker, trustee, and Charles C. Thurston, dated Juno 24th, 1871, the former agreed to sell, and the latter to buy four lots of land therein described, situate in the city of Elizabeth, at the price of $6000 for the lot on which the complainant’s mortgage is, and $2750 for each of the others; on these conditions Thurston was forthwith to commence the erection, on each of the lots, of a good and substantial dwelling-house, of a character and description agreed on between him and Tucker, and in conformity with plans made by an architect, and signed by the parties. To enable Thurston to erect and finish the houses, with the walks and the front and rear yards, Tucker agreed to lend him $6000 towards the erection and finishing of the house on the lot described in the complainant’s mortgage, and $4200 towards the erection and finishing of each of the houses on the other lots. These moneys, which were to be paid only on a certificate of the architect that the work had been done in such manner as to entitle Thurston to them under the agreement, were to be paid in installments as the work progressed. It was further agreed, that when the houses, (with the walks and yards,) or any of them, should be completely finished, ready for occupation, and when the certificate of the architect should he produced to that effect, and Avhen all taxes, assessments, and -water rates, assessed or imposed upon the premises, or any part thereof, after the date of the agreement, should have been paid, and also the assessment which might be impossed or assessed for or on account of the wooden pavement then lately laid down in Newark avenue, and when all liens affecting the premises, or any part thereof, incurred by Thurston, should have been discharged of record, then Tucker should, on the execution and delivery of the bonds and mortgages thereinafter mentioned, convey the premises by warranty deed, with the usual full
When this agreement was made, Tucker was not the owner of the property. He conveyed it to Charles W. Pleasants by deed, dated May 15th, 1871, but not recorded till July 7th, 1871.
By a contract dated July 10th, 1871, and filed on the 28th ■day of that month, made between Thurston and Graham, the latter agreed to do the carpenter work and painting and find the materials therefor, of the house to be erected on the lot described in the complainant’s mortgage. The price to be paid him was $6000. The work was begun immediately and was nearly finished before the 1st of February, 1872, there being left unfinished then, only work to the amount of about $100, which was completed in about two months thereafter. There was extra work to the amount of $36.09. So that the whole amount due Graham was $6036.09. On this, payments were made, leaving a balance of $1586.09. For this sum he filed a claim of lien, on the 4th of September, 1872,
Pleasants, on the 21st of March, 1872, conveyed the premises to Thurston by deed recorded on that day, but dated February 1st, 1872. Simultaneously with this conveyance, Thurston gave to the complainant his bond and mortgage on the premises, dated on the 1st of February, 1872, to secure the payment of $6200 in one year, with interest at the rate of seven per cent, per annum. This mortgage was recorded on the 27th day of March, 1872. Thurston made a mortgage on the premises to the New York Life Insurance Company for $8000, dated March 8th, 1872, which was recorded on the 21st of the same month. The latter mortgage and the-complainant’s mortgage were given to secure the purchase-money of the property, and the money advanced under the-agreement to Thurston to pay for building the house, and money advanced to pay city assessments upon the property - They were both delivered at the time of the delivery of the-deed, which was on the 21st of March, 1872. By complainant’s consent, the mortgage of the life insurance company became a lien prior to his mortgage. Graham insists that his-claim of lien has priority over the complainant’s mortgage.
The complainant’s mortgage, to the extent of the amount of the purchase money of the land, $6000, is unquestionably entitled to priority over the mechanic’s lien. National Bank of the Metropolis v. Sprague, 5 C. E. Green 13; Strong v. Van Deursen, 8 C. E. Green 369; Phillips on Mechanics, Liens, §§ 243, 248.
It covers also, advances to build the house on the mortgaged premises and to improve the grounds and to pay the-taxes and municipal assessments which had been imposed and were liens upon the property. The only question between the parties is, whether as to these moneys, it is also entitled to priority.
There is no equity in giving Graham’s lien priority over the complainant’s mortgage, whether as to advances for building, or for taxes and assessments; nor is he, by the provisions • of the mechanics’ lien law, entitled to such priority.
There will be a decree accordingly.