Whеn a jury trial is waived, findings of fact by the trial judge are conclusive on appeal if there is any competent evidence to support them.
Insurance Co. v. Lambeth,
G.S. 44-39 requires the lien of a materdalman to be filed within six months after the
final furnishing
of the materials. The lien is lost if the steps required to perfect it are not taken in the manner and within the time prescribed by law.
Assurance Society v. Basnight,
What is the legal test for determining when the last materials were furnished? The applicablе law was stated by Brogden, J., in
Beaman v. Hotel Corporation,
Furthermore, in order that the date of the last item be taken as that from which limitation for filing notice of lien shall run, it is essential that the work or materials at different times be furnished under one continuous contract. 57 C.J.S., Mechanics Liens’, p. 632. (Italics ours)
Where the time allowed for filing a lien has begun to run, the claimant cannot thereafter extend the time within which the lien may be filed by doing or furnishing small additional items for that purpose.
Apartments, Inc. v. Noland Co.,
The reason for the rule is dearly stated in
Cahoon et al. v. Fortune Min. & Mill. Co.,
“To permit a contractor, long after the completion of his contract, to revive or keep alive his right of lien by tacking on and adding to his account by filling additional orders for lаbor or material not contemplated by his original contract, would throw open wide the doors to fraud and collusion, and in many cases defeat the very purpose and object of the statute, as it would enable the favored creditor to keep alive indefinitely his right to a lien, and at the same time prеvent the property subject to lien from being reached by other lienholders whose contracts were entered into subsequent to that of his own. ‘It is particularly as regards the rights of bona fide purchasers and incumbrancers that the claimants of this lien are held to the strictest compliance with the statutory provisiоns as to time of its enforcement. Mechanics and materialmen, it is said, should understand that any unreasonable delay in giving public notice of their intention to hold а lien is dangerous, as the public, in purchasing the property, have nothing to warn them after the building is substantially completed, and the statutory period of filing the notiсe of lien has expired.’ ”
The only conclusion to be drawn from all the evidence in this case, including the testimony of Lain, is that the items furnished after November 2,1959 werе not for the purpose of completing the house as required by any contract, but for the sole purpose of extending the time *658 for filing the lien which Davis and defendant both feared would discourage a sale of the property. The defendant was not a general contractor on this job. The only contraсt it had with Davis was to furnish the materials. There was no agreement as to amount or cost. The specifications for the bouse, if there were any, are not in еvidence. It is obvious that the house was substantially completed before May 2, 1960 for it was then occupied by a tenant-optionee who wanted storm doоrs. The gallon of paint was selected as the April 24th (1961) purchase on the theory that Davis could “use it for something.'” It was never used.
The evidence establishes that the purpose of the disputed sales was to extend the defendant’s time for filing its lien. The defendant acted under a mistake of law, but its attempts to extend the lien constituted legal or constructive fraud which may exist without any fraudulent intent.
“Constructive fraud is a breach of legal or equitable duty which, irrespective of the mоral guilt of the fraud-feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.” 37 C.J.S., Frauds, Sеction 2 C.
Whether the materials furnished after the contract had been substantially completed were in good faith and for the'purpose of complеting the contract or colorably to revive the lien is a question of fact.
Sachetti v. Recreation Co.,
Had this been a jury trial plaintiff would have been entitled to a peremptory instruсtion. Since the plaintiff alleged fraud the burden is on him to establish it, and he is therefore not entitled to a directed verdict. 57 C.J.S., Mechanics’ Liens, Section 308 K.
The findings of the trial judge to which the plaintiff excepted must be set aside and the case remanded for a new trial.
In the meantime it would appear that plaintiff, if he hаs not already done so, would be well advised to move below to be allowed to withdraw his bid. There is no sale prior to confirmation. G.S. 1-339.67.
In Glass Co. v. Forbes, ante, 426, this Court affirmed the action of the superior Court judge in permitting a bidder, who had bid too much at an execution sale on the faith of .erroneous advice given him by the judgment debtor and his attоrney, to withdraw his bid. Rodman, J., speaking for the Court said: “Courts are as diligent in protecting purchasers from imposition because of fraud or mistake as they are in *659 protеcting judgment debtors in similar situations. While the doctrine .of caveat emptor applies to purchasers at execution sales it does not ■tie the hands оf a court to prevent a manifest injustice not due to the fault or neglect of the purchaser.”
As the defendant points out in his brief, plaintiff is in the novel positiоn of seeking to restrain a sale at which he was the last and highest bidder. Defendant contends that plaintiff has committed himself to pay ^6,100.00 for whatever interest Davis had in the property at the time it was sold, G.S. 1-339.68 (b), and that the question of priority of liens has become moot. Defendant argues that if plaintiff’s deeds of trust were prior tо defendant’s judgment, the lien of defendant’s judgment attached only to Davis’ equity of redemption which plaintiff bought at the Sheriff’s sale and if defendant’s lien had priority the rеsult was the same.
If a third person had become the last and highest bidder at the sale, clearly plaintiff would .not have been estopped to maintain the рriority -of his deed of trust. While the defendant’s judgment is in all respects binding as between Davis and defendant, the plaintiff is not bound by it since he was not a party to it.
Thomas v. Reavis,
The record does not disclose the value of the property. This litigation, however, is convincing proof that it is not worth the encumbrances against it. The record likewise does not disclose what prompted the plaintiff to bid $6,100.00 for the property at the execution sale four days before he brought this action to restrain thе Sheriff “from proceeding with the sale.”
The only logical explanation is that on the day of the sale he thought defendant’s lien had been filed in time. If so, this supposition was caused by the notice of lien which defendant, the judgment creditor, bad filed. Defendant may not profit from a judgment priority which it obtained by constructive fraud nor capitalize upon plaintiff’s mistake occasioned by it. The doctrine of equitable estoppel, which defendant pleads, does not apply here. Defendant has not changed its position in reliance upon plaintiff’s bid.
Hardware Co. v. Lewis,
New trial.