180 Mass. 3 | Mass. | 1901
The plaintiff is the purchaser at a mortgagee’s foreclosure sale of the premises described in the bill. The defendants have obtained judgments establishing mechanic’s liens on the premises for labor and materials, and decrees have been entered ordering a sale. The plaintiff seeks to restrain the sale on the ground that the liens are not entitled to priority over the mortgage for the reason that the defendants “ did not make a contract for or perform or furnish any labor or . . . materials for the erection of said building until after the execution and recording of the mortgage under which the plaintiff holds said property.” The case was heard by a judge of • the Superior
We think that the rulings were right and that the decree should be affirmed. We assume without deciding that it is open to the plaintiff to question the validity of the liens in this proceeding, but the only question of law which it seems to us the report raises is whether upon the evidence and the facts stated, the finding that contracts were entered into between Hazel and the defendants prior to the execution of the mortgage was warranted. If the contracts were entered into prior to the execution of the mortgage and the labor and materials were furnished pursuant to them, then the liens were valid liens and took precedence of the mortgage, and the finding and ruling of the court •were right. The finding that the labor and materials were furnished pursuant to the contracts was a finding of fact and, therefore, as already observed the only question of law is whether the finding that the contracts were prior to the mortgage was justified.
The mortgage was executed and delivered October 19, 1899, by Hazel who was the owner of the premises, and was recorded October 21. Hazel owned the premises prior to September 1, and before that date had built other houses some of which were six room cottages and had purchased the lumber therefor of the defendant corporation. On or about September 15 he went to the yard of the defendant corporation, and said that he desired to purchase lumber to be used in the construction of a small six room cottage on the premises in question, and the defendant corporation agreed to sell him the lumber necessary for the construction of the house when he should desire the same. It was. understood that it was to be paid for at fair market prices. The defendant corporation estimated that the cost of the lumber
Decree affirmed.