4 Neb. 54 | Neb. | 1875
On the fourth day of September, 1872, Milton Eogers filed his petition in the district court of Douglas county against the Omaha Hotel Company, and lien-holders thereon, seeking to foreclose a mortgage on the hotel owned by said company. Samuel Cafferty, Eichard Withnell and John Withnell, three of the defendants answered said petition, setting forth that they and one .Kahler had furnished certain materials and performed certain labor in and about the erection of said hotel, in pursuance of a written contract, and that on the ninth day of November, 1872, they filed an account of such labor and material in the office of the county clerk of said county.
The court found that there was due said defendants the sum of ten thousand dollars, and the same was a valid and subsisting lien on the hotel building and the lots on which it stands, and that said lien had been assigned by said defendants to one Charles W. Hamilton, with authority to prosecute the same to jndgment. Judgment in accordance with this finding was entered in the court below, from which plaintiff appeals.
The only objection raised by the plaintiff is, that a mechanic’s lien cannot be assigned so as to entitle the assignee to maintain an action to foreclose the lien. Liens of this kind were clearly defined and regulated in the
First. Where the bailee had bestowed labor or expense to alter or improve chattels.
Second. Where the bailee was compelled to receive the chattels, as in case of a carrier.
Third. Where the party in possession had saved the chattels from peril by sea, or had recovered it after actual loss at sea or capture by an enemy. 2 Cooley's Blackstone, Book II, 452, note. In all these cases possession was necessary to enforce the lien, and if the bailee parted with the possession, his lien was gone. The courts have held that these liens are personal and cannot be transferred, and it is sought to apply the same principle to mechanic’s liens.
At common law the assignment of a chose in action was entirely prohibited: Coke Litl., 266, a. 10 Coke, 47. Greenby and Kellogg v. Wilcocks, 2 Johns., 1. Hodgson v. Dexter, 1 Cranch, 347; although in equity the assignee might maintain an action in his own name, such an assignment being regarded in equity as a declaration of trust and authority to reduce the interest to possession. In the case of Master v. Miller, 4 Term R., 320, the court held: “It is true that formerly the courts of law did not take notice of an equity or trust, for trusts are within the original jurisdiction of a court of equity; but of late years it has been found productive of great expense to send the parties to the other side of the Hall. Wherever this court has seen that the justice of the case has been clearly with the plaintiff, they have not turned him round on this objection. Then if this court will take notice of a trust, why should it not of an equity? It is certainly true that a chose in action cannot strictly be assigned, but this court will take notice of a trust, and consider who is beneficially interested;”
“There are three points to be considered in the construction of all remedial statutes. The old law, the mischief and the remedy; that is, how the common law stood at the making of the act, what the mischief was for which the common law did not provide, and what remedy the parliament hath provided to cure this mischief. And it is the business of judges so to construe the act, as to suppress the mischief and advance the remedy.” 1 Blaehstone Com., 87. The object of the law under consideration, being to secure the claim of
Judgment affirmed.