Opinion
12-30-1885
COX and others v. FLANAGAN and others.
J. Boyd Nixon, for complainants. J. E. P. Abbott, for defendants, Wallace and Young & Abbott.
J. Boyd Nixon, for complainants.
Preliminary: The remedy by mechanic's lien is statutory, and the formalities prescribed must be strictly pursued to reach the land. Ayres v. Revere, 25 N. J. Law, 474; Associates v. Davison, 29 N. J. Law, 415, Scudder v. Harden, 31 N. J. Eq. 503; Phillips' Mech. Liens, § 9. The court has power to inquire into the validity of a judgment on lien claim on foreclosure of a mortgage. Scudder v. Harden, 31 N. J. Eq. 503. The bill charged that the bill had priority over the lien claim in question. The master so reported, and decree made accordingly. There was no endorsement under the statute of issuing summons as late as December 27, 1884. Summons on lien was actually issued October 24, 1884. Bill to foreclose mortgage filed January 7, 1885. Revision 1875, p. 674, par. 26; James v. Van Horn, 39 N. J. Law, 360; Wheeler v. Almond, 46 N. J. Law, 161. The estate of the owner was not correctly described. The owners in the lien claim had only an equitable estate in the lands. The affidavits attached to all the lien claims show that work and materials were furnished for repairing the building. The mortgage was recorded February 14, 1884. The liens were filed August 1, 1884. Liens for repairs take precedence only from date of actual filing in the clerk's office. Revision 1875, p. 669, § S. Complainant's mortgage was in the nature of a purchase-money mortgage. Clark v. Butler, 32 N. J. Eq. 669; National Bank v. Sprague, 20 N. J. Eq. 13; Strong v. Van Deursen, 23 N. J. Eq. 370; Macintosh v. Thurston, 25 N. J. Eq. 242; Gibbs v. Grant, 29 N. J. Eq. 419. Complainantsvere not made parties to the suits on the lien claims as required by act of 1884. Pamphlet Laws 1884, p. 260.
J. E. P. Abbott, for defendants, Wallace and Young & Abbott.
BIRD, V. C. There is some money in court. There is a dispute between the complainants on the one hand and Wallace and Young & Abbott on the other as to who is entitled to it. The former claim under a mortgage, the latter under their lien claims. The complainants' mortgage was given to secure the payment of the price of machinery sold and delivered to the owner in equity of the lands upon which the buildings stand against which the liens were filed. A portion of the materials furnished by Wallace, and also by Young & Abbott, was furnished several weeks before the mortgage was executed to the complainant; and, for the purposes of this case, I will assume were upon the premises (although that is disputed) at the time of the execution of the mortgage. The complainants claim that at the time of the execution of the mortgage they were so careful in protecting themselves against lien claims that they sent one of their number to the premises to inquire and ascertain whether or not any materials had been furnished. The person sent swears that no new building had been begun, and that no material was upon the premises. The mortgage was executed upon the second of February, 1884, and was recorded 15th. The twenty-third section of the statute provides "that under such special fieri facias the sheriff, or other officer, shall advertise, sell, and convey said building and lot in the same manner as directed by law in case of lands levied upon for debts, and the deed given by such sheriff or other officer shall convey to the purchaser the estate which the owner had in the lands at the commencement of the building, or which he subsequently acquired, and also in the building, subject only to all mortgages and all other incumbrances created and recorded or registered prior to the said commencement of the building; and in case of gearing or machinery, the bringing of the same upon the premises shall be such commencement, and such prior incumbrances shall have priority to all subsequent builders' liens upon said lands, and upon the erection thereon, except such as may be removable as between landlord and tenant, which may be sold and removed by virtue of any building lien for the construction of the same free from such prior incumbrances." It will be perceived that such lien is made good against the owner, and all claiming under him, subject only to mortgages and other incumbrances created and recorded prior to the commencement of said building. Was this building commenced before the fifteenth of February, 1884, when the mortgage was recorded? The burden of proof is upon the lien claimants. Claiming under the express provisions of the statute, which is in conflict with the common-law right, they must show themselves clearly within its provisions. The testimony offered by them does not establish, with any certainty, when the building was commenced. Witnesses swore that they were employed there in and about the new building; and I think two of them said about February the 1st, but added that they hadkept books of account which they had not with them, but by which, if they had them, they could tell with certainty. The proof having been within their reach, they ought not to expect the court to guess at the truth. As the case stands, in my judgment, the lien claimants have not satisfactorily shown that the building was commenced before February 15, 1884. This consideration is sufficient to settle the question in dispute in favor of the complainants, and I might rest the further consideration of the case; but as other material points are discussed I will consider them.
The liens were filed about August 1, 1884, and set forth the names of the owners of the lot or curtilage whereon the building is erected as Stephen G. Burbridge and J. Rusling Flanagan, trading as S. G. Burbridge & Co., and declare that they have an estate in fee-simple therein. The proof is that the said J. Rusling Flanagan holds the title in trust for himself and Burbridge, the language of the deed being "upon trust, to receive the issues, rents, and profits of the said premises, and to apply the same to the use of Joseph R. Flanagan and Stephen G. Burbridge, trading and doing business as Burbridge, Flanagan & Co., and to convey, transfer, or mortgage said lands, or any part thereof, only upon the written order of said Burbridge & Flanagan." It is urged that the statement that the alleged owners have an estate in fee-simple in the premises is not exactly true, and therefore misleading, and renders the claim objectionable. Whether there is any force in the question thus raised I am relieved from discussing, since it has been settled in the case of Cornell v. Matthews, 27 N. J. Law, 522, that the mechanic's lien law does not require either the lien claim or the declaration to state the legal estate of the owner in the land; but only to name the owner of the land or the estate on which the lien is filed to be stated. The lien claims in express terms declared that they were for repairs; in no way intimating or pretending that they were for the erection of new buildings. The proof is that the materials furnished and work done were for and upon entirely new structures, although in juxtaposition to others, and intended to be used with others. In my judgment, this is essentially a misdescription, and renders the claim fatally defective.
October 24, 1884, a summons was issued on each of said claims. The complainants, then still holding their mortgage, were not made parties, as is required by the first section of the act of 1884, (Pub. Laws, 260,) which provides that in every such case every person holding a mortgage of record against the property affected by said lien claim, whose mortgage would be cut off by a sale under said lien claim, shall be made a party defendant to said suit. This requirement is imperative, and was not complied with. I regard it as an omission which cannot be overcome, and which enables the complainant to proceed in the face of the claim made. This provision is another one of the conditions imposed by the legislature upon lien claimants which they must observe. December 27, 1884, one of the complainants and their counsel examined the records of the clerk's office, and discovered that the said lien claims purported to be for repairs, and also discovered that there was no indorsementupon them indicating that any summons had been issued thereon. The proof satisfies my mind that both counsel and clients supposed and believed that any claim upon the liens had been abandoned. Afterwards there was an indorsement made upon each of the lien claims in these words: "Summons issued on the within claim this twenty-fourth day of October, A. D. 187," which was signed by the clerk. I cannot but regard the omission to make the indorsement upon the claim of the issuing of the summons as fatal. Whatever may be fair and equitable, (if such equitable principles are to be applied at all in the construction of statutes beyond the liberty expressed in the statute itself,) there is nothing in this case permitting of their application.
It is insisted, however, that the lien claimants have their judgments upon their liens, and that the proceedings thereunder cannot be questioned collaterally, however irregular. I cannot concur in this view. It does not seem to me that the principle which sanctifies a judgment has ever been applied against a person in interest who was not a party to the action in which the judgment was obtained. I do not see how I can be mistaken in this, for, plainly, the most high-handed wrongs could be perpetrated against the innocent and ignorant in the name of justice. I do not think that this view, in any sense, conflicts with the opinion expressed by the chief justice in the case of Jacobus v. Insurance Co., 27 N. J. Eq. 605, so carefully considered by all of the court; for what is there said I believe to be the law, resting upon the soundest principles of public policy. And that such indorsement should be made at the time of issuing the summons has been settled, I think, upon the soundest principles of construction, in the court of errors and appeals, in the case of Wheeler v. Almond, 46 N. J. Law, 161. It may be said that that was a case at law; but the construction of a statute must be the same in every court. The legislative mandate cannot be supposed to have a double meaning.
I conclude that the complainants are entitled to the fund, and will so advise.