Mellor v. Valentine

3 Colo. 255 | Colo. | 1877

Elbert, J.

Jones, by Ms recorded deed, conveyed the fee to Young, and thereby held him out'to the world as the owner of the premises sought to be charged with this lien.

He cannot be permitted to stand by in silence and see the work go on, and afterward defeat the lien, or diminish Young’s estate by the production of Young’s unrecorded bond to re-convey. 1 Story’s Eq Jur. 385, et seq.; Phillips’ M. L., § 225; Higgins v. Furgeson, 14 Ill. 269; Donaldson et al. v. Holmes et al., 23 id. 88; Wendall v. Rensselaer, 1 Johns. Ch. 344; Storrs v. Barker, 6 id. 166; Phillips v. Clark, 4 Metc. (Ky.) 348.

For the purposes of this lien, and as against Jones and his grantees, Young must be treated as owner in fee of the property at the date of his contract for repairs.

The fact that the contract for repairs was with Allen, as well as Young, does not affect the lien.

If the contract be made with several parties, one of whom is the owner, it is sufficient. Van Court v. Bushnell, 21 Ill. 624; Roach v. Chapin, 27 id. 194.

The legal effect of section 7 of the Lien Act of 1872 is to give the mechanic a lien from the date the labor was commenced, or the first of the materials furnished.

The manifest object is to prevent wrong to the mechanic by alienations or incumbrances during the progress of the work. Subsequent alienations or incumbrances are not prevented, but made subordinate to the right of the mechanics who, at the time, were engaged in working, and continued afterward to work under previous employment by the vendor. Phillips’ M. L., §§ 228-229; Monroe v. West, 12 Iowa, 119; Miller v. Kaufman et al., 14 Md. 173.

It is objected that the lien was allowed for work done and materials furnished after the 17th of June, the date of the purchase.

Where the work done, or materials furnished, is continuous in its character, the contract is to be regarded as an entirety, and the lien attaches for work done and materials furnished, after, as well as before the purchase. Phillips’ M. L., §§ 228, 229, 230; Jones v. Swan, 21 Iowa, 181; Monroe v. West, 12 id. 119; Milner v. Norris, 13 Minn. 455; Miller v. Kaufman et al., 14 Md. 173.

The rule is modified in this case by the fact that Jones and Mellor were cognizant of the repairs, and silently acquiesced in their continuance. Under the statute the notice is to be filed within forty days after the work is completed ; in the case of sub-contractors, within twenty days after the last work is performed, or the last material furnished. The lien attaches from the time the work was commenced, or first of the materials furnished.

This language clearly contemplates an open current account, consisting of different items, furnished at different times, and that such an account be treated as an entirety.

This, however, in no wise dispenses with the necessity of showing a previous hiring, or'contract with the owner or his agent under which the work was continuously done or materials continuously furnished.

That the work done and materials furnished by each original claim owner in this case were continuous, and each founded on a previous contract with the owner or his agent, is not called in question, except as to the claims to be now considered.

The account of Buel and Burlingame commenced on the 24th of June, seven days after the conveyance to Jones and Mellor, and cannot be said to be founded on a contract with the then owner or his agent.

That the contract should be with the owner or agent is essential. The law imposes on mechanics, like other persons, the necessity to ascertain for themselves the nature of the interest in the land to be improved, of the persons with whom they contract, and all negligence in this regard is charged to their account. Phillips’ M. L., § 225.

The lien for this claim was improperly allowed.

The work of Silas W. Long and William H. Sebastian commenced on the 17th of June, the date of the conveyance to Jones and Mellor. To prefer the lien, we must say that the conveyance was subsequent to the commencement of the work; to prefer the conveyance, we must say that it was previous to the commencement of the work. We are unable to say that éither was the fact. They were concurrent as to the day, and there is nothing to show at what hour of the day the work was commenced, or the deed recorded. The onus, however, is on the lien claimant to establish his right to priority under the statute, and having failed in this the lien should not have been allowed as to these two claims.

The decree of the court below will be modified, and the lien discharged as to the claims of Buel and Burlingame, Sebastian and Long.

It is also irregular in several particulars, unnecessary to specify, which will be corrected by the decree of this court.

In all other respects the. decree of the court below is affirmed, and the appellant will be allowed his costs in this court.

Affirmed.