28 Me. 511 | Me. | 1848
Lead Opinion
The opinion of the Court was drawn up by
— The plaintiff performed labor upon houses built by the testator, upon lands supposed to have been conveyed by him in mortgage. It is admitted that he had an attachable interest therein, at the time of his decease. The statute provides, that persons performing certain labor, “ shall have a lien to secure payment of the same, upon such house or building, and the lot of land, on which the same stands, and on the right of redeeming the same, when under mortgage ; and such lien shall continue in force for the space of ninety days from the time, when the payment becomes due.” Ch. 125, section 37.
Provision is made by the following section, for the enforcement of such lien, by an attachment of the estate within the ninety days. Soon after the labor was performed, the testator deceased, the defendant having assumed the trust of executor, represented the estate to be insolvent, and commissioners of insolvency were appointed. It is admitted, that the estate was in fact insolvent.
The plaintiff caused the suit to be commenced against the executor within ninety days, after the last charge for labor performed was made, to preserve and enforce the alleged lien.
Provision is made by statute c. 109, for the disposition of the whole assets of an insolvent estate. No part of it is appropriated to the payment of claims secured by lien, while provision is made in the tenth section, for the adjustment of the rights of those, who hold collateral security by mortgage or pledge of real estate or personal property, including notes or other evidences of debt. No provision is made by statute authorizing the recovery of a judgment against an estate, actually insolvent, which is not to be added to the list of claims, returned by the commissioners, unless the judgment be rendered upon a demand entitled to a preference. If this action could be maintained, no judgment could be rendered against the goods and effects of the testator, in the hands of the defendant. It could be rendered only against the right or interest which the testator had, when the lien attached, in a certain estate, which must be described in the judgment. It would be a judgment in rent rendered by a court of common law, not based upon any process against the property.
And there is usually no definite description of the bounds of such estates, by the act, so that the Court could describe, in a judgment, the estate to be sold or levied upon, to satisfy the judgment.
If the plaintiff could be allowed to enforce his alleged lien by the recovery of such a judgment, and execution issued thereon, authorizing the debt to be collected only out of the estate subject to the lien, the effect would be to take so much from the assets, and prevent its application to the payment of the expenses of the funeral, or to the allowance authorized to be made to the widow and children, or to the expenses of the last sickness, or to any of the other preferred claims.
The omission to provide for the maintenance of an action, and for the entry of a special judgment to enforce it. The omission to notice and to provide for it, in the section regulating the rights of mortgagees and pledgees; the appropriation of .the whole estate to other purposes than the payment' of such ■claims ; the improbability that the Legislature would designedly ■have given to such claims a preference, over those for funeral .expenses, for expenses of the last sickness, and over all other .preferred claims.
It must, at least, be regarded as doubtful, whether such was the intention of the Legislature; and if such an intention ■.could be discerned, no provision has been made to carry that .intention into effect. In such case the Court would not be authorized to supply the enactments necessary, to enable one to maintain an action, and to recover a judgment only against the ■.estate, subject to the lien.
It was the intention as disclosed by the enactments of the .-Legislature, that all claims against an insolvent estate, except .claims entitled to a preference, should be presented to, and adjusted by the commissioners of insolvency, when no suit had been commenced upon them during the life of the debtor, and when the estate had been represented to be insolvent, within ■one year after administration had been granted.
This suit does not appear to be one authorized to be prose.cuted by the statute, c. 109, <§> 28, as founded on a demand •.disputed, and having been commenced within one year, and .not upon a claim entitled to a preference, it cannot be maintained. Plaintiff nonsuit.
Dissenting Opinion
The following dissenting opinion was by
— The plaintiff by c. 125, >§> 37 and 38, Rev. :Stat. had a lien upon the house of the defendant’s testator, for work and labor performed by him.
The statute secures the benefit of such lien by an attachment of the property, upon which the labor is performed, in an action against the debtor.
The statute declares, that the person performing the labor ££ shall have a lien to secure the payment of the same,” and ££ sucli person may secure the benefit of such lien by an attachment.”
The first acts containing provisions similar to the one now in force, were passed on the 25th and 29t.h of March, ] 837.
The law of 1821 provided for the dissolution of attachments by the death and insolvency of the debtor.
If the Legislature had intended, that the lien should cease upon the death and insolvency of the debtor, one would suppose that such provision would have been inserted in the acts passed in 1837, or in the Revised Statutes, when these several subjects underwent a revision.
The lien is created before the attachment. It is a vested interest in the property, upon which the labor is performed, and the attachment is given as a mode of perfecting such interest. The lien is created under the law by the labor and the materials. And the laborer or material man has a property in the house, upon which he has bestowed his labor, or for the repair or erection of which, he has furnished materials.
Those liens, which are dissolved by death and insolvency are created by the attachment only. Such creditors have no other priority than merely causing the property of their debtors to be attached. Their debts are not more meritorious than those of other creditors.
But the lien under consideration, is as much a vested interest in the subject, to which it is attached, as a mortgage would, be.
Suppose the Legislature had provided that mortgagees of personal property should perfect their title by suit and at-
The death of the mortgager or pledger does not defeat the pledge, nor should, it have that effect upon the lien of the plaintiff. The very object of the lien is to protect the holder of it against insolvency. The necessity of it is increased where the debtor dies insolvent. Nor is it just, that the labor and materials, which are not the property of the. deceased insolvent, should be devoted to the payment of his debts generally, or to the support of his wife and children.
But it is said that no provision is made for rendering judgment against the administrators or executors of insolvent estates, in such cases. When the Legislature declares a right to exist, it confers all necessary means, by which such right can be established. The Legislature declares the lien to exist, (i shall have a lien to secure the payment of the same,” and has pointed out the course to be pursued to render the lien effectual. . It is by an action at law, and it would necessarily follow that an appropriate judgment could be rendered in such action.
Under the late bankrupt law of the United States, liens are secured, arising from attachments, though no mode for so doing is pointed out in the law itself.
Although the bankrupt is discharged from all his debts, and is not ordinarily to be subjected to have executions against him, yet to preserve the lien, and to give effect to the provisions of the act, it is necessary that there should be a special judgment ■and execution, so as to enable the creditor to levy upon the property attached.
In form it is a judgment in personam, in substance a judgment in rem, binding the specific property attached. Davenport et al. v. Tilton, 10 Metc. 320. ■ The plaintiff can have such judgment and execution as will enable him to secure the lien upon the property attached.