Welch v. McGrath

59 Iowa 519 | Iowa | 1882

Lead Opinion

Day, J.

2. mechanic's menifor^o’rm o£‘ -I. The apjDellant claims that the lien, to be valid, should have been claimed against the owners of the property at the time ^e lien was filed, and not against the estate of "William "Welch. The appellant relies upon Robbins v. Burns, 34 N. J. Law, 322. In that case it was held that, where the owner of the building on which the lien was claimed died before the lien was filed, the claim for a lien should have been filed against the parties who were owners by inheritance at the time the lien was claimed, and not against the executors of the former owners.

The decision was based upon the peculiar provisions of the New Jersey statute, which requires that the lien claim shall contain, amongst other things, the name of the owner or owners of the land upon which the lien is claimed. The law in force at the time this lien was claimed was section 1851 of the Eevision of 1860, as amended by Chapter 111 of the Ninth General Assembly, and was as follows: “It shall be the duty of every person, except as has been provided for a subcontractor, who wishes to avail himself, of the provisions of this chapter, to file with the clerk of the District Court of the county in which the building, erection, or other improvement to be charged with the lien is situated, and within ninety days after all the things aforesaid shall have been furnished, or the work or labor done or performed, a just and true account of the demand due or owing to him after allowing all credits, and containing a correct description of the property to be charged with said lien, and verified by affidavit. But the failure to file the claim, account, settlement, or demand in the time named in this section and in section 1874, shall not operate to defeat the claim or demand, nor the lien of the person supplying the labor or material, as against the owner, nor the contractor, nor as against any one except purchasers or incumbrancers, without notice, whose rights accrued after the ninety days and before the account, or settlement, or claim, or lien is filed.”

This statute does not, as does the New Jersey statute, require that the claim for a lien shall contain a statement of the name of the owner of the property against which the lien is claimed. The statute simply requires that the party claiming the lien shall file a just and true account of the demand owing to him, containing a correct description of the property to be charged with the lien. When the person against whom the claim originated is dead, the proper course,’ we think, in view of the provisions of the statute which we have cited, and the provisions of section 1857 of the Revision, is to make out the account for the demand due, against the estate which is liable for its payment, and not against the heirs, who are not liable for it. We are not authorized to hold, under the provisions of the statute cited, that the claim for a lien should contain the name of any other party than the one who owes the debt. It is claimed, however, that it is necessarily implied in section 1852 of the Revision, that the claim for a lien shall contain the name of the owner of the property at the time the lien is filed. This section provides as follows: “It shall be the duty of the clerk of the District Court to indorse upon every account the date of its filing, and make an abstract thereof in a book by him to be kept for that purpose and properly indexed, containing the date of its filing, the name of the person laying or imposing the lien, the amount of said lien, the name of the person against whose property the lien is filed, and a description of the property to be charged with the same.” Unless the person against whom the account is filed had some interest in the property when the lien arose, or when the claim therefor was filed, the lien would be unavailing. This section assumes that the person against whom the claim is filed has, or had, some interest in the property upon which the lien could operate.

The requirement that the clerk’s abstract shall contain the name of the person against whose property the lien is filed, really amounts to no more than that it shall contain the name of the person against whom the account is filed, and a claim for a lien is made. If the legislature intended that the statement for a lien should contain the name of the owner of the property at the time the lien is filed, it is incredible that section 1851 should remain altogether silent respecting it, and thatthe requirements should be left to be inferred from the provisions of another section having no reference to what the statement should contain, but simply prescribing the duties of the clerk in relation thereto.

2<__fore_ closure o£: parties to. II. It is claimed that the foreclosure of the lien, and all the proceedings subsequent thereto, are void, as to the plaintiff, because she was not made a party to the foreclosure. The foreclosure proceeding was had against the administrator of the estate of William Welch, deceased. The provisions of the statute upon this question are contained in the Revision, and are as follows:

“Sec. 1858. In all suits under this act, the parties to the contract shall, and all other persons interested in the matter in controversy, and in the property charged with the lien may, be made parties, but such as are not made parties shall not be bound by any such proceedings.”

“Sec. 1859. In case of the death of any of the parties specified in the immediately preceding section, whether before or after suit brought, the executor or administrator of such deceased party shall be made plaintiff or defendant as the case may require, and it shall not be necessary to make the heirs or devisees of such deceased persons parties to such suit.”

William Welch was a party to the contract, and, if he had been living at the time the suit was commenced he would have been a necessary party. He died, however, before the suit was commenced and the plaintiff became one of the heirs. Under section 1859, the administrators of the estate of William Welch became proper parties defendant, and it was not necessary to make the heirs parties. It is said that, under section 1858, persons interested in the property charged with the lien not made parties, are not bound by the proceedings. But section 1858 refers in this provision to all other parties than the parties to the contract. When a party to the contract dies, his administrator or executor becomes his representative as to all matters connected with the suit, and by express provision of the statute, it is not necessary to make the heirs parties. A foreclosure against the executor or administrator of a deceased party to the contract is just as binding upon his heirs or devisees, as would have been a foreclosure against the party himself during his lifetime.

This case is not like Gates v. Ballou, 56 Iowa, 741. In that case the land on which the lien existed was sold before the action to foreclose the lien was commenced. The statute upon which this decision is based does not apply to that case.

3._._. limlcations ■waived. III. The account against William Welch matured April 2, 1870.' The claim for a lien was filed April 16, 1872. The action to foreclose the lien, was not commenced until October 26th, 1872, which was two years and nearly seven months from the time the account matured. The reply alleges this fact against the sufficiency of the title acquired under the lien foreclosure. As we have seen, the proper parties were made to the foreclosure proceeding. The decree entered in that proceeding is binding until set aside in the proper manner. The defendants could waive the statute of limitations, and having failed to interpose it at the proper time, it cannot be made available now.

5. administ?aeqi5retftie decedent^o£ IV. The plain tiff’s replication alleges that Ann Welch, (McGrevy) mentioned in defendant’s abstract, to whom the sheriff’s deed was made, is the same Ann Welch who was administratrix of Wm. Welch, deceased^ and who had a homestead interest in the said realty, and was incapacitated by reason of her said relationship to said estate and the plaintiff and the property to acquire a title thereto adverse to the plaintiff". The abstract of title set forth in the defendant’s cross-bill, and the correctness of which is not denied, shows that the property was sold at sheriff’s sale to J. W. Heisey and Charles O’Brien, who assigned the certificate of purchase to Mary Mc-Grath, who assigned the certificate to Ann McGrevy (Welch). Ann McGrevy did not purchase the property at the sheriff’s sale, but took an assignment of the certificate of purchase. Although Charles O’Brien was one of the administrators of Welch’s estate the replication does not base the alleged invalidity of the defendant’s title upon the ground that O’Brien could not purchase the property in connection with Heisey, at the sheriff’s sale. The point relied upon in this replication is, that Ann McGrevy (Welch) stood in such a fiduciary relation to the estate that she could not purchase the property. She took an assignment, however, from one whose title is not impeached, and notwithstanding her fiduciary relation, acquired as good a title as her assignor.

The demurrer to the plaintiff’s replication was properly sustained.

Affirmed.

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Rehearing

OPINION ON REHEARING.

Day, J.

Upon the petition of plaintiff, a rehearing was granted upon the éth point of the foregoing opinion. It is insisted that Ann McGrevy stood in such a fiduciary relation to the property in question that she could not acquire a good title, even though purchased from one who could acquire a good title. The authorities cited by plaintiff’s attorney do not, as we understand them, sustain this position. The case of Silverthorn v. McKinster, 12 Pa. St., 67, is directly in point in support of the opposite doctrine.

5. —:-. That was a case where executors, under a power given to sell lands, sold to one Burns, and Silverthorn, one of the executors, afterward purchased from Burns. The court say: “As then, Burns was, by the sale, invested with an estate recognized by our laws, there was nothing to hinder him from selling and conveying it to whomsoever he pleased. Nor is there anything in the law, or the transaction itself, to prohibit Isaac Silverthorn from becoming the purchaser.

“There is no suggestion of mala fides in the sale made by the executors of Burns, and it is clear that, in the absence of fraud, one, who has sold an estate as trustee, may after-wards fairly repurchase it for himself. Painter v. Henderson, 7 Barr., 48.”

It is further insisted that Ann McGrevy, being found in possession of the title, the burden is thrown upon her to show that she acquired her title from a hona fide purchaser. The abstract of title set forth by the defendant in her answer shows that the property in controversy was sold under execution to J. W. Heisey and Charles O’Brien, who assigned the certificate of purchase to Mary McGrath, and she to Ann Mc-Grevy. From the exhibits attached to the replication it appears that Charles O’Brien was one of the administrators of the estate of William Welch, deceased. In Fleming v. Foran, 12 Ga., 594, it is held that an executor cannot become the purchaser of land sold under execution against his testator, but that the sale will be set aside on the application of the legatees, provided such application be made in a reasonable time, otherwise the right will be considered waived or abandoned. The reasoning adopted in this opinion is quite satisfactory, and the rule established is, we think, the proper one. See also Spindle v. Atkinson, 3 Ind., 410.

6. —:-. Under the rale recognized in Fleming v. Foran, supra, a purchase by an executor under an execution against his testator is not void, but simply voidable, at the election of the legatees, exercised within a reasonable time. Now, from a reference to the petition in this case, it appears that the execution sale to Heisey and O’Brien is not attacked. No effort is made to set it aside. The petition simply alleges that Ann and Hugh McGrevy had no mortgageable interest in the property, and that the mortgage and the sale pursuant thereto are void, and the petition, referring to the decree of foreclosure of the mortgage, prays that the decree and the proceedings thereunder may be set aside. In the application also, no reference is made to the purchase at execution sale by Heisey and O’Brien. It is simply alleged that Ann Welch by reason of her relationship to the estate and the parties, was incapacitated to acquire a title to the property adverse to the plaintiff. The theory of both the petition and the replication seems to be that, without reference to any illegality in the purchase of Heisey and O’Brien, Ann Welch, stood in such fiduciary relation to the property that she could not through any one acquire a good title to the property. This position we have shown to be incorrect. We need not speculate upon what the result might have been if the plaintiff had alleged the invalidity of the purchase at execution sale by Heisey and O’Brien, and had sought to set that aside. Relief can be granted plaintiff alone upon the case made in her ^leadings.

7. ksactice: reiiemunitea ings. The fact, appearing in defendant’s answer, that she acquired title by assignment from Heisey and O’Brien, does not show her title to be invalid, for the interest acquired by ’ n j Heisey and O’Brien was voidable only at the election 0f plaintiff, and must stand until she asks to have it set aside. The court cannot set aside the sale to Heisey and O’Brien, unless plaintiff asks that relief. The mechanic’s lien and the judgment thereon being affirmed, it may be that plaintiff would not desire to have the sale set aside and the property resold. Without the setting aside of the salé to Heisey and O’Brien, the plaintiff can have no relief, and the plaintiff nowhere in her pleadings asks this relief. The former opinion is adhered to.

Affirmed.