McGreary v. Osborne

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Dore & Ross leased to Rankin & Co. a frame building, resting on piles driven into the earth. The basement floor was on the ground; and in this building Rankin & Co. put up machinery for a steam flouring-mill. The frame in which the machinery was placed was supported by props from the basement story, and was also fastened to the building by screws, bolts, and nails. During the continuance of the lease, Rankin & Co. sold the property to Osborne for §7,000, he paying dowm $3,000, and executing his promissory notes for the balance. In the written contract of sale executed by all the parties, it was stipulated that Osborne was to have immediate possession; and, upon payment of the note, Rankin & Co. were to execute a bill of sale. In case Osborne failed to pay any of the notes; Rankin & Co. were authorized to take possession of the property and sell it, paying any surplus that might remain after discharging the notes to Osborne. While Osborne was in possession, and before any one o.f the notes became due, he employed the plaintiff to repair the machinery. After the repairs were made, Osborne sold to Veatch, and he to Rankin & Co., who executed a new contract of sale to Ycatch. This suit was brought to recover the amount due for work and labor, and to enforce a mechanic’s lien upon the machinery. The plaintiff had judgment in the Court below, and the defendants appealed. The rule in reference to fixtures is applied with different degrees of strictness as between different parties. (2 Kent, 345.) As between the landlords and tenants in this case, there would [122] seem to be no doubt as to the right of the latter to remove the machinery. But, as between vendor and vendee, the machinery would be considered as part of the realty. (2 Kent, 346, and authorities there cited.) The first section of the act of April 19th, 1856, gives mechanics and others, for work and labor, or materials furnished, for the construction or repairing of any building, wharf, or other superstructure, a lien upon such building, wharf, or superstructure, for the work and labor done, or materials furnished. The fourth section goes further, and also gives a lien upon the land, if at the time the land belonged to the person who caused the superstructure to be erected. The tenth section gives mechanics and artisans a lien upon personal property made, altered, or repaired by them, with the right to retain the possession until payment. Putting these different provisions together, the evident intention of the act was to give mechanics and artisans a lien for all work done by them upon any description of property. The first section is very broad, and gives a lien upon the superstructure itself, as distinct from the land; and the fourth section gives a lien also upon the land, when the same is owned by the person who caused the superstructure to be erected. The object of the act was to give the mechanic a lien upon whatever interest the person had who caused the superstructure to be made. If the party owned only the superstructure, then the lien would only attach to that; but if he also owned the land, the lien would also embrace it. And any interest in land which could be sold under execution would be the subject of such a lien. Unless we give the act this construction, we must do manifest injustice to the language of the first, fourth, and tenth sections. It may often happen that the ownership of the superstructure may be in one person, and that of the land in another. (5 Mass. R., 487; 8 Mass. R., 282; 3 Kent, 487, note.) Prom the quasi movable character of the property involved in this case, the plaintiff could no.t take and keep possession of it, as of that kind of personal property mentioned in the tenth section. This state of the case was foreseen by the framers of the act; and, therefore, the lien was given upon the superstructure itself, as distinct from the land. It is very justly contended by the counsel of defendants, that Osborne could do no act to affect the rights of Dore & Ross, or those of Rankin & Co. The latter had agreed to sell their interest to Osborne, and had placed him in possession; and, under the stipulations contained in the written contract executed by Rankin & Co. and Osborne, the remedy left Rankin & Co., upon non-payment of the balance of the purchase-money, was a sale of the property. Osborne had the right to insist upon a sale, and the payment of the surplus proceeds, if any, to him. This right existed in Osborne at the time the work was done, and the [123] lien attached upon his interest. Those who purchased after-wards took subject to the lien. Judgment affirmed.