Rose v. Persse & Brooks Paper Works

29 Conn. 256 | Conn. | 1860

Hinman, J.

The debts which the plaintiffs in these cases claim as incumbrances upon the defendants’ paper mill were contracted by Persse & Brooks, the former owners of the property, as individuals. And the defendants first make the question, whether bills for foreclosure can be sustained without Persse & Brooks being made parties to them. But ever since the case of Swift v. Edson, 5 Conn., 531, it has been considered well settled that a mortgagor who has parted with his interest in the mortgaged property need not be made a party to a bill to foreclose. The object of such a suit is to effect the property, not the debt; and, after assignment, the mortgagor has no longer any interest in that to be affected. So far as the foreclosure may incidentally operate to extinguish the debt, it is for his benefit. He would therefore have no interest in defeating the foreclosure, and not being a party, and, therefore, not bound by the decree, his rights can in no event be impaired. The same principle is applicable to the case of the assignor of property on which a builder’s lien has attached. After assignment, he has no longer any interest to be protected, and the circumstance that his deed contains covenants which may render him liable if the property was incumbered, can make no difference. If he is ever called upon for any claim arising out of any such covenants, he will be left with the same means of defending against it as if no decree, affecting other parties, had passed in reference to the property. This objection therefore must be overruled.

Upon the merits of these cases, however, we think the plaintiffs must fail, on several grounds which we will mention. In the first place, the certificates lodged with the town clerk cover too much property. The statute requires that certificates of this sort “shall describe the premises,” which we think these do not, within the meaning of the statute. The most that can be said in their favor is, that the property on which the lien is claimed is included in the description, with much other property on which no lien was ever claimed in respect to these debts. Now, one object of the statute, in requiring a description to be given, was that the public, by an examination of the record, might be able to learn on what precise property the lien was claimed. This object is entirely defeated if such a description as this is valid. We have no occasion to say, and do not intend to say, that where a party by mistake includes more land than he can hold subject to his lien, his certificate will be void. That probably would be deemed too harsh a construction of the language of our statute, which is probably different from the statute under which the Pennsylvania cases, cited by the defendants, were decided. We do not regard those cases, therefore, as applicable here. But where the certificate is either intentionally false, or so grossly inaccurate as to show that there was no attempt to give an accurate and true description, then, if the statute means any thing, the certificate ought to be held void, as no better than a total omission to attempt to comply with its provisions.

The premises claimed as subject to the lien are a paper mill, entirely separated from the two other paper mills, included with it in the certificate, by the intervening property of third persons. There was, therefore, no difficulty in describing it by itself. If it should be held to be sufficiently described, we do not see how it could be held otherwise had it included all the property in the village. Indeed, there is no way to deliver the transaction, from the imputation of an attempt to mislead in the description/ except to suppose that it was thought sufficient, if the description was extensive enough to include the property on which the lien was in fact intended to be claimed. On this ground, therefore, we feel constrained to hold that the certificate was void, and that it lays no foundation for the continuance of the lien on the premises.

We are inclined to think also that the plaintiffs’ accounts for labor and material furnished in these cases, up to the first of August, were discharged by the notes taken at that time, and the receipts given on account of them. The receipts, according to the case of Hurd v. Blackman, 19. Conn., 177, operated, like releases at common law, to discharge the claims. We are aware that this is a peculiar effect given to receipts in full in this state, but it has always been practiced upon here, and results from the principle that such a receipt may be pleaded in bar of an action, and will require an answer to avoid it. Tucker v. Baldwin, 13 Conn., 136. As there was nothing to show that the receipts did not express the real understanding and agreement of the parties, and as they are expressly said to be'“in full,” which, notwithstanding the argument of counsel to the contrary, we think, unexplained, can mean nothing less than full payment, we are satisfied that they must be held to be substantially a discharge of so much of the accounts as accrued previous to the first day of August, 1857.

But perhaps the most satisfactory answer to both the claims arises from the fact that the labor and materials furnished by the plaintiffs, were not furnished for the purpose of constructing or. repairing any building. We have no occasion here to lay it down, as a general proposition, that fixtures, or fixed machinery, can in no case be so connected with the construction or repair of <^a building as to be entitled to the protection of our lien law. If they are of such a character that, in the exercise of reasonable care and skill, they can not be as well affixed or annexed to it at any other time as during the operation of the work upon the building, and they are thus affixed or annexed to it by the mechanic who is constructing or repairing it, as incidental to his work of constructing or repairing a building which is to be used for some purpose which renders such annexations proper or necessary, perhaps a fair construction of our statute, under which the interests of mechanics and builders were undoubtedly the principal object, would require us to place such annexations or fixtures upon the same footing as work upon the structure itself. However this may be, it is quite obviously a very different case from the one presented to us at this time. In these cases the materials and work were in no part furnished or performed as incidental to the construction or repair of the building, but, the building being an independent structure, the plaintiffs contracted, not to repair it, but to put into it certain fixed machinery, and fit it to the building. This clearly is not within the language of the statute, and would require a strained construction to bring it within its spirit or intent. It is not work usually or ordinarily furnished by builders, but by an entirely different class of mechanics, which, as we suppose, it was not the intention by this statute to furnish with any peculiar advantages in respect to the security of their claims.

The other points made in the case of course become of no importance to the result, and are therefore not intended to be decided. We advise the superior court on the whole case, that for these reasons the defendants are entitled to the decree of the court dismissing the bills.

In this opinion the other judges concurred.

Advice that bills be dismissed.