17 How. Pr. 449 | N.Y. Sup. Ct. | 1859
On a reference to ascertain who was entitled to the surplus on a sale of mortgaged premises, Bailey, one of the defendants, claimed the amount due him under the mechanics’ lien law, for work done upon the premises sold. This work was done for Wm. L. Johnson, contractor with Warren Beman and Josiah H. Burton, and the notice of lien was filed on. the 28th of September, 1857. Beman never held the title of the property. Burton, in whom the title was, conveyed the premises to Leeds by deed, May 16, 1857, which was recorded May 20,' 1857, and Leeds conveyed the premises to Ogden, February 1, 1858, by deed recorded February 19, 1858.
On the hearing before the referee, Bailey offered to prove the facts necessary to sustain alien against Burton and a con
It appears to me there are several reasons why Bailey’s lien cannot be enforced. 1. The lien has expired By the statute the lien ceases after one year from the time of filing, unless the party filing it within that time commences proceedings in the court of common pleas, to bring it to a close. (Sess. Laws of 1851, p. 954.)
The fact of his being made a party to this action does not relieve him. The lien still ceases after a year, because he has not done what the statute declares to be necessary to continue the lien in force after that period. During the year this court could recognize the lien as existing, and could continue the property, or keep its proceeds in court subject to the lien, if proper proceedings were taken to enforce it; and might, perhaps, obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payment, if it was brought to a close within the year, or if proceedings were still pending for that purpose. But they could give no judgment ordering the property to be sold to satisfy the lien either before or after the year expired, because that judgment can only be rendered by the common pleas, and the proceeding is not one known to this court or the common law.
2. Another reason why the defendant Bailey is not entitled to a share of the surplus is, that neither Beman nor Burton held the fee at the time of filing the notice of lien. Burton had some months previously sold the property to Leeds, whether fraudulently or not is immaterial; because Ogden had purchased from Leeds innocently, for value and without notice of the lien. He had no notice of the filing of the lien in September, because Leeds obtained the title previously; and whether he held it for Burton or not, Ogden not knowing that fact, was not bound to take notice of any lien filed after Burton’s deed was recorded.
Roosevelt, Ingraham and Pratt, Justices.]
3. Even if Ogden had knowledge of the fraud, the conveyance was good between the parties. The creditors had their remedy in an action for equitable relief, but if, instead of resorting to that remedy, they neglected their rights, and suffered their lien to expire, it is now too late to ask the court to enforce it.
I see no ground upon which Bailey is entitled to relief. The ruling of the referee was right, and the order made by him should be affirmed.