Marston v. Stickney

60 N.H. 112 | N.H. | 1880

The defendants, having paid the purchase-money, became the equitable owners of the premises. Mrs. Stickney, by the purchase of Smith's interest, acquired the whole title, and she was in open, visible, exclusive, and unambiguous possession at the time the contract with the plaintiffs was made, and while the house was being built. Her possession was in law notice of her equitable interest, and a creditor of William could not hold the land as against her. Cutting v. Pike, 21 N.H. 347; 1 Wn. Real Prop. (4th ed.) 317. The questions between her and the plaintiffs are the same that they would have been as between her and William, to whom she furnished money for building the house, and by whom its erection was sub-contracted to the plaintiffs. By the contract, or performance of it, the plaintiffs acquired no lien against her equitable title, she being in possession. The plaintiffs' contract was with William, and their lien is upon William's interest. To create the statutory lien against an equitable interest, its owner must have had actual or constructive notice of the contract for labor and materials. Sly v. Pattee, 58 N.H. 102. The contract for building and furnishing materials being subject to the rights of Mrs. Stickney, the plaintiffs took nothing by their levy as against her. The plaintiffs' claim for a lien stands no better if it is placed on the ground that they were sub-contractors or laborers under a contract with an agent or contractor of the owner, for the reason that they gave no notice to the defendants that they should claim a lien. Laws of 1871, c. 1, s. 1.

Bill dismissed.

STANLEY, J., did not sit: the others concurred.