2 Rawle 151 | Pa. | 1828
The opinion of the. court was delivered by
— The plaintiff, Jldam Werth, has appealed to this court, under the third section of the act of assembly of the 16th of
The following aré the material facts of tfie case:. — On, or about the 6th of November, 1824, Joseph Werth, the defendant, commenced the building of a stone barn on his plantation, situate in Frankfo'rd township, in the said county of Cumberland. On the 2d of Jlpril, 1825, Henry Kline and Leonard Boyer filed, in the proper office, their respective claims, under the'act of assembly of the 17th of March, 1806, against Joseph Werth, for mason work done by them for Joseph Werth, on the ,16th of November, 1824, at the said stone barn, in the township and county aforesaid, amounting together to eighty-five dollars and twenty-five cents. On the 2d day of Jlpril, 1825, Joseph Diehl, filed his claim, for carpenter work, done to the same barn, on the 23d of December', 1824, for twenty-three dollars and fifty cents. On the 25th of March, 1825, JLdam Werth, the, appellant, obtained a judgment in the Court of Common Picas of Cumberland county, for one thousand four hundred and forty-two dollars and. thirty-two cents, against Joseph Werth. The plantation of Joseph Werth, including the aforesaid barn, was afterwards levied on, by virtue of a Fieri Facias, which was issued 'on a judgment obtained by Abraham Wagner against Joseph Werth, on the 23d of March, 1825, for one thousand four hundred and fifty dollars; arid sold on the 19th of Jlúgust, 1827, to the said Jbraham Wagner, for one thousand seven hundred and thirty-two dollars, under.a Venditioni Exponas, by the sheriff of the said county. ■ It- is. admitted, the money .raised by the sale, is insufficient to pay all the judgments, .and the above stated mechanics’ liens. The Court of Common Pleas decided, -that' the lien was to be confined to thebuilding erected and the land covered by it, with all the necessary means of enjoying it, in the usual way, and that the liens were first to be paid, and the residue of the purchase money applied to the judgments, according to their priority, and appointed the prothonotary a commissioner to report the-liens, and the proportionate value of tbe building, in-reference to the whole tract, and that the said value should be paid-to the liens prorata,, and the residue to the judgments. It is now alleged, that the court below erred, in directing the mechanics’ liens to be paid out of the proceeds of the sale o'f the real estate of the defendant, and also in. appointing a commissioner to ascertain, the value of the barn, on which they were a lien: A question wag raised below, as to the time from which a mechanic’s lien should take effect; but this was properly abandoned on the argument, by the counsel for the appellant, as it has been settled, by repeated decisions, that the liens of mechanics, and persons who furnish materials, take effect from the commencement of the building, and are to be preferred to any other liens which originate subsequently thereto. 2 Serg. & Rawle, 138, and 170. 13 Serg. & Rawle, 269.
One question discussed here is, whether the mechanics’ liens on
Another error assigned is, that the court below erred in appointing a commissioner to ascertain the value of the barn, &c. We cannot think so. It is observed, that the Court of Common Pleas tendered an issue to the party, to ascertain the value, before they ¿ppóinted a commissioner. This offer of the court, the appellant did pot think proper to accept; and I cannot see what else, under such circumstances, the court could do. In truth, so far from committing an error, the court did exactly what was done, as I apprehend, by this court, in Hinchman v. Graham, 2 Serg. & Rawle, 170, where an execution was levied on an unfinished house of the defendant, and the money arising from the sale of it being brought into court; a commissioner was appointed to examine into, and report the liens. Here, then, we have furnished a precedent at least, which sanctions the proceedings of the Court of Common Pleas in this case. I am, therefore, of opinion, that there is no error in this judgment, and that it should be affirmed. Judgment affirmed.
See 17 Serg, & Rawle, 276,