43 Md. 134 | Md. | 1875
delivered the opinion of the Court.
The bill in this case was filed to enforce a mechanics’ lien, under Article 61 of the Code ; and by section 25 of that Article, where the lien is sought to be enforced by bill in equity, the same proceedings are directed to be had as are used by the Courts of Equity to enforce other liens'.
The bill was filed against Caskey alone, the original owner, and for whom the houses were built, omitting altogether the purchasers who had become owners of the property before the lien claim was placed upon record, on the 7th of October, 1873
Without deciding whether it was or not essential to make all the owners of the twelve houses, for which material was furnished, and which are described in the lien claim, parties to the proceedings to enforce the lien, we can have no doubt that Thomas, the purchaser of the three houses upon which the lien is sought to be fixed, to the exclusion or exemption of the other nine, was not only a proper but an indispensable party. The Court, therefore, was perfectly right in admitting him as a party defendant on his own application.
But, whether Thomas could be affected by the evidence taken under the interlocutory decree against Caskey, before he, Thomas, was admitted as a party to the cause, having failed to except to such evidence before the argument in the Court below, (Cross vs. Cohen, 3 Gill, 271,) or whether the interlocutory decree was properly passed as against Caskey, the original defendant, are questions that we deem to be immaterial, and therefore do not decide ; for upon the whole evidence, including that taken under the interlooutory decree, we are entirely satisfied that the decree appealed from is correct, and must therefore be affirmed.
It appears that Caskey built a row of houses, consisting of twelve, on the south-west side of Madison Avenue extended, commencing them in the spring and finishing them late in the fall of 1872, or early in the winter of
As to the three houses sold to Thomas, they were finished in the fall of 1872, except some work about the fire-places, and the laying of the pavements in the yards ; and there were no bricks furnished for these houses on Caskey’s account after December, 1872.
Thomas entered into a contract with Caskey for the purchase of the three houses here involved, on the 17th of December, 1872, and by that agreement the houses were to be completed and ready for occupancy, and so to be delivered to Thomas, free and clear of all charges, taxes and incumbrances of every kind, except a certain mortgage and a ground-rent, on tbe first of January, 1873. Thomas took possession before the day mentioned, and on 3rd of January, 1873, be obtained from Caskey a deed for the bouses, which was placed on record on the 5th of February, 1873.
As we have said, no bricks were furnished by the claimant on Caskey’s account, for the houses purchased by Thomas, .after the latter took possession in December, 1872 ; but there were some paving bricks furnished on Caskey’s account after that time, to be used about some of tbe other bouses in the row ; and Thomas purchased on his own account, and paid for, some twenty-five hundred paving bricks in April, 1873, which were used about tbe bouses purchased by bim. Tbe two last items in the claimant’s account against Caskey, are for paving bricks fur
The onus of proving that any portion of the material furnished, was delivered within the six months immediately preceding the filing of the lien claim is upon the claimant ; and, in this case, the proof is far from being clear that the bricks charged for in the two last items, were delivered at the times specified in the account. The charges in the claimant’s books are no evidence of either the quantity or the time of delivery ; and the claimant himself does not profess to have personal knowledge upon the subject, nor do the other witnesses examined by him prove with any certainty either the quantities or dates of delivery. And as to the acknowledgments of Caskey, spoken of by the witnesses, they had reference to the state of the account prior to the time of the purchase by Thomas.
But, apart from this defect of proof, we think the lien ineffectual as against the houses, sold to Thomas.
This is altogether-unlike the case of Miller & Kauffman vs. Barroll, 14 Md., 173.
- There it was held, that the sale of a house and lot, whilst the house was in process of erection and unfinished, could not alter or affect the rights of the mechanic, under our mechanics’ lien law, who was then engaged in doing, and continued afterwards to do work, under aprevious employment by the vendor when owner; and that where work was done or materials furnished, continuously under one contract or employment, made by the vendor of the house, whilst owner thereof, the claimant could recover for the whole of the work' done or materials furnished, without giving the purchaser notice. In the case now before us, there was no special contract for furnishing all the
In the case of Yearsley vs. Flanigan, 22 Penn. St., 489, involving the construction of a mechanics’ lien law very similar in its terms to our own, it was held, that where a contract was made with a bricklayer to do all tbe brick and stonework about tbe erection of a building, including the laying of the pavement, the contract being entire, a mechanics’ lien could be filed within six months from the completion of the work, including the pavement; but it was also held, that though the contract for constructing the building and laying the pavement be entire, if the building ivas finished, and the contract treated by the parties as complete, and a considerable time was allowed to elapse before the pavement was laid, and other rights intervened, tbe claim filed more than six months from the date of the last- work upon the building, was too late.
Here, tlie work upon the building, was done, so far as Caskey was concerned, before the 1st of January, 1873, and the rights of Thomas, under the contract of purchase, date from that time; and it was more than nine months
We think the lien claim was filed too late to affect the houses sold to Thomas.
Decree affirmed.