39 A.2d 566 | N.H. | 1944
During the course of oral arguments, counsel for the plaintiff was willing to concede that any lien for water furnished to the former owner had been lost since suit was not brought within one year of the last item charged such owner. This view is correct. The statute under consideration does not provide one lien for all charges of gas, water or electricity furnished to all patrons on a parcel of real estate. A lien attaches for each separate account. Accordingly, the provision that the lien shall continue for one year from the last item charged means not against any patron on certain premises but the last item charged in a particular account. Any lien for water furnished the former owner to the value of $45.05 expired before the present suit was brought.
The principal question relates to the account of $99.08 against Richard M. Bobst. The plaintiff claims that it had a lien on the premises for this full amount notwithstanding the fact that the first mortgage to the bank was placed on said premises prior to the furnishing of any of the water covered by this account. The statutory lien for water rates does not take precedence over an existing mortgage unless the Legislature so intended. "It is one of the *231
characteristics of common law liens which arise, upon considerations of justice and policy, by operation of law, as distinguished from liens created by contract or statute, that the former, as a general rule, attach to the property itself without any reference to ownership, and override all other rights in the property, while the latter are subordinate to all prior existing rights therein." Sullivan v. Clifton,
The statute under consideration is silent concerning any precedence of the lien over an existing mortgage and shows no intention of the Legislature that there should be such precedence. The statute is as follows: "All charges as gas, water or electric rates for gas, water or electricity furnished to patrons in any city, town or precinct operating municipally owned gas, water or electric works, shall become a lien upon any real estate where such gas, water or electricity is furnished, and said lien shall continue for one year from the last item charged in said gas, water or electric rates; and said lien may be enforced by a suit in behalf of said city, town or precinct, ordered by the commissioners or other board in charge of the plant against the owner or owners of such real estate. The record in the office of the gas, water or electric department of the gas, water or electric rates, and the charges for the gas, water or electricity furnished as aforesaid, shall be sufficient notice to maintain suit upon such lien against subsequent purchasers or attaching creditors." Laws of 1937, c. 158, s. 6 (R. L., c. 56, s. 22). The wording, "shall become a lien upon any real estate where such gas, water or electricity is furnished," does not indicate an intention that the lien shall be preferred to an existing mortgage. The phrase "real estate" may mean any right or interest therein. R. L., c. 7, s. 21. The phraseology of the statute expresses entirely correctly the provision of a lien that is subordinate to an existing mortgage. Without other indications of legislative intent, it cannot be said that the same wording indicates that the lien is superior. The silence of the statute upon the point of priority is sufficient to establish the superiority of an existing mortgage over a later created water rate lien. If the Legislature had intended that the lien should precede all other claims both present and future, it could easily have expressed or implied such mandate.
The history of the legislation may throw some light upon the intent. It started as House Bill No. 74 of the Legislature of 1927. This related to water rates in the city of Dover only. The bill was amended to cover water rates in any city, town or precinct operating municipally owned water works but without any change relating to the nature of the lien, its continuance or recording. Probably those who introduced the bill on behalf of the city of Dover did not intend such a radical step as cutting under existing mortgages.
Sometimes legislation, if ambiguous, is construed in the light of what is just and fair. Injustice to a municipally owned utility that can refuse service in the case of overdue accounts and that can require *233 deposits is not so clear in refusing it priority of its liens over existing mortgages which are not benefited by the service and the owners of which have no control over it, that such priority can be said to be implied. The wisdom or policy of such precedence is for the Legislature and not the courts. With respect to this precedence the Legislature has been silent.
The plaintiff relies upon the case of Mechanics Savings Bank v. Collector of Taxes,
With respect to the $24.02 item, the bank was a subsequent purchaser so far as its second and third mortgages were concerned. Since there was enough to satisfy the first mortgage and this claim, the plaintiff is entitled to judgment for $24.02. With regard to the balance of the $99.08, the bank does not rank as a subsequent purchaser because under the foreclosure deed it acquired the title as it existed at the creation of the mortgages.
Judgment for the plaintiff for $24.02.
All concurred.