122 Ind. 84 | Ind. | 1890
Wilcox seeks by his complaint' to foreclose a lien which he asserts he holds by the assignment of part of an estimate, certified to him by the appellant’s engineer, against an unfinished railroad of which the appellant is the owner. Holleran and Ingerman filed a cross-complaint, asserting a lien, and claiming the right to enforce it as the assignees of the persons with whom the construction contract was entered into by the railroad company.
We do not deem it necessary to give a synopsis of the pleadings, for the reason that the special finding contains the material facts, and we can, without a repetition, determine all the material questions of law arising in the case upon the facts contained in the special finding.
The facts, as they appear in the special finding, may be
In so far as the conclusions of law are material to the controversy waged in this court they are, in substance, these:
1st. The plaintiff has a lien for $798.50 upon that part of defendant’s road in Hamilton county and west of Nobles-ville.
2d. The cross-complainants, Holleran and Ingerman, have a lien upon the road between Noblesville and Lebanon for $3,950.50.
The question which comes first in logical order, is whether the lien asserted under the construction contract exists and is enforceable. In 1883 a statute was enacted giving a lien to all persons who do work upon a railroad not in operation, or furnish materials for it, and in 1885 this statute was amended. Elliott’s Supp., sections 1699 and 1704. There is, therefore, a statutory lien created by law, and the question is as to the extent and nature of the lien, and whether the plaintiff and the cross-complainants are within the law.
The act of 1883 was in force when the construction contract was made, for it was not supplanted by the act of 1885, since that act, although it was passed some months before the contract was entered into, did not take effect until July 18th, 1885, but we do not regard the later act as in any respect impairing the lien created by the earlier statute. The later law, so far from impairing the lien, really enlarged it, by making the provisions of the act of 1883 explicit and
The true construction of the earlier act requires the conclusion that the Legislature meant to create a lien that should fully secure contractors, laborers and material-men. It is impossible to misconceive the object which the Legislature intended to accomplish, and the courts can not, without a wide departure from principle, defeat the legislative purpose by a narrow and rigid interpretation. The act is remedial in its nature, and is, therefore, to be liberally construed so as to extend and make effective the statute in the direction and to the extent designed by its authors. We are satisfied that the act of 1883 gave a lien upon the railroad, and not Upon mere parcels of it, as an isolated bridge or culvert, or Us a single embankment or excavation. A culvert, embankment or cut would, as every one knows, be utterly valueless, and it can not be held that the Legislature intended to give a lien upon things destitute of value. To so adjudge would be to affirm that the Legislature did an empty and an idle thing.
It must be assumed that the Legislature intended that the acts giving the lien should take their place in the great system of the law, and not form mere detached and fragmentary parts isolated from the other rules and statutes forming the system of law. Assuming this, the conclusion'justly
It has been held that statutes giving a lien affect only the remedy, and, if this be the true rule, then the act of 1885 gives a lien to all persons who do work and furnish materials no matter when the contract was made, for it is general and sweeping in its terms. Gordon v. South Fork, etc., Co., 1 McAllister, 513. As the work was done and the materials were furnished after the act of June, 1885, took effect, then the contractors and sub-contractors may enforce a lien under that act if it be true that the act affects only the remedy.
It is not necessary, however, to decide whether the right to a lien is a substantive one within constitutional protection, or whether the statute creating it simply affects the remedy; for, whatever view be taken, the ultimate conclusion must be the same. Either the lien is a substantive right which can not be taken away by subsequent legislation, or the statute creating a lien simply affects the remedy. If the lien can not be taken away by subsequent legislation the contractors and sub-contractors have not been deprived of it; if the statute creating the lien affects only the remedy, then the contractors and sub-contractors may avail themselves of the remedy.
If the original contractors were here the claimants, we should have no doubt as to their right to enforce a lien under the statute, and the question is, can those to whom they have assigned their rights claim the benefit of the statutory
Wilcox, the plaintiff, was assigned part of an estimate issued to Parker & Co., the original contractors, and he claims directly through them. The claim assigned to him had been definitely fixed and ascertained prior to the assignment, and the estimate was an acknowledgment that it was due his assignors. If he acquired all the rights of his -assignors he acquired the security which they held as an incident of their claim, so that the question is, could he, under the law, acquire their full rights? We know that there is an apparent conflict in the authorities upon the question of the assignability of a mechanic’s lien; but this conflict is caused principally by the fact that, at common law, choses in action were not assignable, although in equity it is otherwise. The rule declared by the cases supported by the stronger reason is that such liens are assignable in equity. Major v. Collins, 11 Bradw. (Ill.) 658; Friedman v. Roderick, 20 Bradw. (Ill.) 622; Dixon v. Buell, 21 Ill. 202; Cairo, etc., R. R. Co. v. Fackney, 78 Ill. 116 ; Texas, etc., R. R. Co. v. McCaughey, 62 Texas, 271; Austin, etc., R. R. Co. v. Daniels, 62 Texas, 70. As our statute adopts, and, in truth, enlarges the equity rule, it must follow that such liens may be assigned. This is the ruling of our court, and it is right. Sinton v. Steamboat, etc., 46 Ind. 476.
The conclusion we have declared is supported by many other courts in strongly reasoned opinions. Murphy v. Adams, 71 Me. 113; Tuttle v. Howe, 14 Minn. 141; Skyrme v. Occidental, etc., Co., 8 Nev. 219 ; Iaege v. Bossieux, 15 Gratt. 83; Kerr v. Moore, 54 Miss. 286; Stryker v. Cassidy, 76 N. Y. 50. It is in close harmony with the general principle that a security is the incident of a debt and passes with the assignment of the debt to the assignee. Perry v. Roberts, 30 Ind. 244; Felton v. Smith, 84 Ind. 485, and authorities cited, p. 495; Reeves v. Hayes, 95 Ind. 521; Day v. Bowman, 109
We can not regard the reasoning of some of the courts which hold that the right to a lien is a purely personal privilege as either valid or forcible. Statutes giving a lien always intend to give a security for a debt, and this they generally accomplish. If the debtor gets what he contracted for it can not, in justice, make any difference to him to whom he pays what he owes, nor to whom the security created by law is assigned. It is often of great importance to a contractor to be able to raise money to prosecute the work under contract, and, in order to do this, to assign a claim secured by a lien. The denial of the right to assign may often seriously cripple and hamper a contractor, and yet do no good to the debtor. If the one may be benefited without the slightest injury to the other, there is no conceivable reason why the law should not permit him to receive that benefit by assigning his claim and lien. Take, for illustration, a case where a railroad company fails to pay its contractors, and they must either raise money on their claim or suffer their property to be sacrificed, is it not bare justice to permit them to prevent loss and possible ruin by availing themselves of their lien by assigning it to a person from whom they can obtain money ? The transfer can do their debtor no harm, but it may do them great good. It is a sacrifice of justice to a bald technical rule of the common law, little respected anywhere now, to deny the right to assign the debt and with it the security the law provides.
. It may be that there are statutes which make the lien a mere personal right, incapable of assignment, but our statute does not. It does not restrict the lien to any class; on the contrary, it gives a lien to all persons who do work or fur
"VYe have no doubt that "Wilcox acquired a right to the lien of his assignors.
The right of the cross-complainants stands on even firmer ground than does that of the plaintiff. They did work and furnished materials after the contract was assigned to them, and the railroad company recognized their right to do so, and also recognized their claim. It is quite clear, both upon principle and authority, that they have an enforceable lien. Even the courts which deny the general right to assign the lien recognize the right of the persons who do work and furnish materials under such circumstances to avail themselves of the lien created by statute. The lien follows the debt or contract out of which it arises. McDonald v. Kelley, 14 R. I. 335; Pensacola R. R. Co. v. Schaffer, 76 Ala. 233; Davis v. Bilsland, 18 Wall. 659 ; Murphy v. Adams, supra.
The doctrine of Pearsons v. Tinckner, 36 Maine, 384, was expressly repudiated in the later case of Murphy v. Adams, supra. The rule asserted in Caldwell v. Lawrence, 10 Wis. 273, is virtually conceded to be wrong in Tewksbury v. Bronson, 48 Wis. 581, but is adhered to upon the rule of stare decisis. But we need not further pursue this line, for, as shown in Kerr v. Moore, 54 Miss. 286, and in Tuttle v. Howe, 14 Minn. 145, the overwhelming weight of authority sustains the rule long since asserted by this court.
The cross-complainants had a lien upon the uncompleted part of the road upon which they did work, and for which they furnished materials. Neither by the contract nor by the acts done under it was there any severance of the line as to them, for, throughout the transactions between the par
We do not understand the statute to confine the right to a lien to one county in cases where the work extends into two or more counties. The lien extends to the whole line of an uncompleted railroad, no matter how many counties it may traverse. The purpose of the statute is evident, and that purpose is to give laborers, contractors, and material-men a lien upon the railroad which their labor constructs, and for which their property is used. The Legislature, it is manifest, did not intend to confine the lien to a line of road within a single county, and we can not so construe the statute. The improper use of a single word can not be allowed to thwart the intention of the Legislature, as it is manifested by the entire legislation upon the subject. Here the only misuse of terms consists in employing the singular, “county,” where, it is evident, the plural, “ counties,” should have been used. It is our duty to give effect to the intention of the Legislature, and this we do by adjudging that a lien fastens upon an entire and continuous line of unfinished road, and may be enforced in any one of the counties through which the road runs. The case is analogous to that of a mortgage embracing parcels of land lying in different counties, and in such cases it is well settled that suit to foreclose may be brought in any one of the counties. Holmes v. Taylor, 48 Ind. 169.
It is obvious that if any other construction sho.uld be given the statute its enforcement might often lead to injurious results. It would uselessly multiply suits, and it would divide a line of railroad so as to make it in some instances practically valueless. Reasoning upon an analogous question the Supreme Court of the United States said, in Muller v. Dows, 94 U. S. 444: “A part of a railroad may be of little value when its ownership is severed from the ownership of another part. And the franchise of the company is not capable of division.” So, we may say here, the fran
The statute of 1885 gives a lien upon a railroad not in operation, and in doing this makes explicit what was before clearly implied. This, of course, excludes parties from acquiring a lien upon that part of the road completed and in operation. In this instance, the railroad was completed from Anderson to Noblesville and no further, so that there was an uncompleted part extending from Noblesville to the line of Hamilton county, and on that part the lien fastened. Where a corporation having a line of railroad in operation to a town or city within a county, contracts for the construction of a part of the road leading from such town or city to a point beyond the county limits, the contractors may acquire a lien upon the part which they construct, or aid in constructing, although a portion of it lies within the county in which a part of the road is completed and in operation.
There is here no question of priority of liens, for here the original debtor is seeking to escape payment of the money due its contractors, and the only question is whether the contractors and their assignees have a lien which they can en
The notice of the intention to hold a lien is in substantial conformity to the statute, and, as against the original party, this is all that is required. Neeley v. Searight, 113 Ind. 316; Peek v. Hensley, 21 Ind. 344.
Where, as here, a line of railroad, although it extends through two or more counties, is treated in the contract and in the performance of the work under the contract as a con
The estimates, as many of the cases hold, severed and divided the indebtedness, and each might have been assigned, but in enforcing a lien it would be necessary to make all interested persons parties to the suit. In this instance, the plaintiff and cross-complainants were certainly entitled to payment of the sums evidenced by the estimates, and as the property was indivisible it was proper to marshal all claims and enforce them by one decree. The parties claiming under the estimates were neither bound to delay until the entire work was done, nor to sell the road in fragmentary parts,
As the appellant is the original debtor, it can make no difference to it whether the trial court was right or wrong in adjusting priorities, or in fixing the time when the lien accrued. If the cross-complainants are content with the provision of the decree giving "Wilcox priority, it can not be cause for complaint by the debtor.
The judgments rendered in favor of the material-men and laborers, and paid by the appellant, constituted a payment to the cross-complainants. They were notified, as the evidence shows, of the pendency of these actions, and it was their duty to have defended them. The rule in analogous cases is, that if one primarily liable is notified of the pend-ency of an action, and required to defend, he must do so or he will be bound by the judgment. Chicago v. Robbins, 2 Black, 418 ; McNaughton v. City of Elkhart, 85 Ind. 384; Morgan v. Muldoon, 82 Ind. 347. The judgments referred to conclusively adjudicated the claims of the parties, and the cross-complainants must credit the appellant with their aggregate amount, for they can not collaterally impeach these judgments.
We have considered all the material questions in the case in whatsoever form they arise, and our ultimate conclusion is' that the judgment in favor of Wilcox should be affirmed, and that the judgment in favor of the cross-complainants should be reversed for the failure to allow the proper credit for the judgment rendered in favor of the laborers and material-men. It is, therefore, adjudged that the judgment as to the
In all other respects than those indicated, the judgment is affirmed, and it is ordered that the costs of this appeal be taxed against the appellees, Holleran and Ingerman, except such costs as affect the appellee Wilcox, and, as to those costs, the judgment is, that they be taxed against the appellant.