4 E.D. Smith 734 | New York Court of Common Pleas | 1858
When the plaintiff purchased the three houses and lots in Thirty-fifth street, they were subject to Colwell’s lien, and if that lien ceased and was at an end by the omission within a year to notify the county clerk that proceedings had •been instituted to enforce it, then the plaintiff, who had no notice of these proceedings, would be entitled to have the judgment ■of foreclosure vacated.
The statute declares that the lien shall continue “ until the expiration of one year from the creation thereof, and until judgment rendered in any proceedings for the enforcement of itand that the lien, after one year from the filing of it, may be discharged by an entry of the county clerk in the book of liens, “ stating that no notice has been given to him of legal steps to enforce the lien.” If no proceedings have been commenced within the year, then the lien ceases at the end of that
It is insisted that if proceedings are commenced within the year, but no notice of them is given to the clerk, that any one interested in the removal of the incumbrance is entitled, after the year has elapsed, to have the lien discharged by the entry of the clerk of the want of notice; and it is suggested that no such entry in this case could be obtained, as it is the practice of the clerk to refuse in any case to make it without an affidavit from the owner that he has had no notice within the year of proceedings to enforce the lien,—which could not be obtained by the plaintiff, as such proceedings had been commenced, and the owner could make no such affidavit. That thus—though the failure to notify the clerk of the steps that had been taken to foreclose the lien, gave to plaintiff the right to have the entry made and the lien discharged—he was deprived of the right in consequence of the practice adopted by the clerk. It does not appear that the clerk was ever requested to make such an entry; and if he had been, and had refused, unless such an affidavit was made by the owner, the proper remedy of the plaintiff, if he was entitled to the entry, was to compel the clerk, by mandamus, to make it.
But in a case where proceedings have been commenced within the year, I do not understand that a failure to notify the clerk
The only object of this notice is to prevent the clerk from making an entry, which he may do at the end of the year, discharging the lien upon the presumption, from the want of such notice, that no proceedings have been commenced. A lien expires in a year from the creation of it, unless proceedings are commenced to enforce it; but it remains a subsisting incumbrance upon the lien docket until an entry is made discharging it. It is presumed that no proceedings have been commenced, if the clerk has had no notice of any proceedings when a year has elapsed after the filing of the claim, and he is then at liberty to make the entry which will discharge it. The statute simply declares what may be the effect of want of notice to the clerk, and what he may do or shall do, when a year has expired, if no notice has been given to him; but it has not prescribed how this notice is to be given,—whether it may be given to him orally, or whether it must be in writing: whether it should apprise him that notice has been served upon the owner, specifying the court in which and the time when the owner was to appear and submit to an accounting and settlement, or whether it is sufficient to notify him simply, in the words of the statute, that legal steps have been taken to enforce the lien. The sole purpose of this provision, in respect to notice, or rather to the want of notice by the clerk, was simply, in my judgment, to point out a mode in which the lien might be discharged from the docket in cases where neither claimant nor owner had taken any steps throughout the year during which the lien runs, to enforce it or bring it to a close. If this notice to the clerk was intended for any other purpose—if it was essential to the validity of the proceedings to enforce the lien, or designed to protect the rights of the owner, or any other party interested in the foreclosure of the lien—the statute, I think, would have been more explicit in pointing out how it was to be given, and would have indicated what it was to contain, with at least some degree of certainty, as has been done in respect to the notice which creates the lien, and the notice which is to be given for the enforcement
If the clerk has no notice, he has undoubtedly the right, after the year has elapsed, to make this entry whether proceedings have been commenced or not; and if he makes it, .the lien is discharged, as it was made upon a presumption, warranted by the statute, that no proceedings had been commenced; but the practice of the clerk of requiring an affidavit from the owner, is a proper precautionary measure on his part, before making such an entry. A notice may have been actually given, and may have been lost or mislaid. The clerk may have neglected to file it, or to make any entry of the receipt of it. If a verbal notice suffices (and the statute, as before remarked, has not indicated how it is to be given, or what notice will suffice), the clerk may have forgotten it. Yet, if he makes the entry, the
My conclusions upon this branch of the case are, that the omission, during a year from the filing of the claim, to notify the clerk that legal steps have been taken, did not operate to discharge the lien,—the only object or necessity of such a notice, in any case, being to prevent the clerk from making the entry discharging the lien. That the inchoate lien created by the filing of the claim (no entry having been made by the clerk), continued after the year and until the judgment, which judgment became and is now a valid and subsisting incumbrance upon the premises; and the application to vacate the judgment upon the ground that the lien had ceased to exist when the judgment was rendered, is denied.
The next point in the case, is a demand for equitable relief, if the court should refuse to vacate the judgment upon the ground above stated. The plaintiff asks that the judgment and all proceedings subsequent to the complaint be set aside, or that the judgment may be so modified that he may be allowed to come in and defend, and show to what extent Colwell had a lien upon the house now owned by the plaintiff; that a reference be ordered to ascertain what proportion of the materials furnished by Colwell for the six houses, was used in the construction of the house now owned by the plaintiff; and that, upon the payment by plaintiff of the amount or value of such proportion, a per
It is assumed, on the part of the plaintiff, that the lien of Colwell for the materials furnished by him towards the erection of the six houses, is divisible into a separate lien upon eacfi house and lot, to the extent of the materials used in each house; that the lien given by the statute is upon a house or building, together with appurtenances to such house or building and the lot of land on which the house or building stands; and though the materials were furnished by Colwell in pursuance of a contract for the erection of six houses, yet as each house and lot is distinct in itself, and capable of being severed and sold separately, that it is the duty and within the power of the court to apportion the lien and distribute the burden equally upon each house and lot.
When there are incumbrances upon several parcels or lots of land, which have passed into the hands of different owners, a court of equity can undoubtedly, upon the maxim qm sentit commodum, sentvre debet et onus, so apportion the burden that each shall hear his proper part in the discharge of the common obligation (Rogers v. Mackenzie, 4 Ves., 472; Rooke’s Case, 5 Co., 100 a.; Story's Eq. Jur., 484); and it may be that this court, in a proper case, when the necessary parties were before it, might so adjtist its judgment upon the foreclosure of the lien, as to equalize the burden among the separate owners of the different lots, so far as it could be done consistently with the due enforcement of the rights of the claimant. But I do not deem it necessary to consider that question, as I am clear that the plaintiff has established no cause entitling him to this special relief, if the court were in a position to administer it. He purchased the three houses and lots on Thirty-fifth street at the mortgage sale, with a full knowledge of the existence of Col-well’s lien. He knew, when he ptu-chased, that they were subject to the payment of that lien, or to the payment of any judgment that Colwell might obtain upon the foreclosure of it. He bought at the mortgage sale in October, but did not complete his purchase until the 18th of ¡November, 1856, so that there can be no pretence that he relied upon the invalidity of the lien, upon the ground already considered, the want of notice to the clerk of proceedings to enforce it; as a year from the
The mortgage under which these three lots were sold, though nominally in the name of Daniel Paine, was for the plaintiff’s benefit. It was executed to secure a debt due to the plaintiff by Hardenbrook, the mortgagor, and the foreclosure of it, unless the contrary is shown, must be regarded as his act. The attorney of the plaintiff in this action was the attorney in the foreclosure suit, and both he and the plaintiff were advised, before the plaintiff completed his purchase, of Colwell’s claim. Col-well might have been made a party to that suit; and if he had been, he would have been entitled, as a subsequent incumbrancer, to the benefit of any surplus that might have remained of the purchase money, after the payment of the mortgage debt. It is not averred that the three houses and lots sold for no more than enough to pay the mortgage debt, which was but $6000, or that there were prior incumbrances sufficient to absorb the whole of the purchase money. If such were the fact, it was incumbent upon the plaintiff, in an action addressed to the equitable consideration of the court, to have set it forth; and if there is any presumption arising from his omission to do so, it is, that the fact was otherwise. We do not know but that there
The presumed equity in favor of the plaintiff, as between him and the assignor Bonney, arising out of Bonney’s absorbing the surplus remaining after satisfying the mortgage on the house and lot upon Thirty-sixth street, by having it applied in payment of a lien in his favor, which was subsequent in point of time to the lien of Colwell’s judgment, of which Bonney was the assignor, is not presented in the points submitted to me, and I do not know if the plaintiff wishes the court to consider it. If he does, it may be disposed of very simply. If the lien of Bonney, which absorbed the surplus arising upon the sale of the house and lot in Thirty-sixth street, was limited to that house and lot, then the surplus fund arising from the sale of it constituted the sole security for the payment of that lien; and if that surplus had been applied to the extinguishment of the lien arising upon the Colwell judgment, which was more extensively secured upon the six lots, it would have been to the prejudice and partial loss of a lien secured but upon one lot. This, I think, Bonney was not bound to do, because the lien upon the Colwell judgment was prior in point of time. If both liens were limited to the same piece of ground, it might be incumbent upon Bonney to apply the surplus from the sale first in payment of the lien prior in point of time.; at least, if the rights of other parties might be prejudiced by applying it first to the payment of a subsequent lien. But if the creditor holds two securities, one of which is secured upon several parcels of land and the other is secured but upon one of them, and the latter is sold, I think he has the right to apply the proceeds upon that
Judgment for the defendants.