Harbach v. Kurth

Opinion, Me. Cheep Justice Paxson : The third specification of error includes all of the others. It is that the court erred in charging the jury “ that the lien of plaintiff’s mortgage was divested by the judicial sale in evidence, and that the verdict should be for the defendants.” The lien of plaintiff’s mortgage was subsequent in point of time to the mechanics’ lien under which the mortgaged premises had been sold. It follows, necessarily, that, if the mechanics’ claim was a valid lien, a sale of the premises covered thereby, under a judgment obtained in the scire facias upon said lien, would discharge the subsequent mortgage. The plaintiff contends, however, and offered to prove on the trial below, that the claim in question was filed against two lots of ground, while-the building was erected on one only of said lots, and that the other lot was wholly unnecessary for the ordinary and useful ■ purpose of said building. This offer the court rejected, and it forms the subject of the second specification of error. The claim filed describes the building as “ erected upon two lots or pieces of ground,” the whole being described by metes and bounds as though they formed one lot. The plaintiff’s contention was that the second lot was not required for the ordinary and useful purposes of the building erected on the other lot; that the lien was void as to both lots, and the sheriff’s sale passed no title. We cannot assent to this proposition. Conceding that the claim covered more ground than was essential to the proper enjoyment of the building, we cannot say that the lien was void. It is true, the lien creditor did not have the curtilage defined, as provided for in the act of assembly. He filed his claim against what he conceived to be the proper amount of ground. If he filed it against too much, the owner, mortgagee, or any other lien creditor had the right, under the fifth section of the mechanics’ lien law of June 16, 1836, to apply, by petition in. writing, to the proper court to [183] appoint competent and skilful persons as commissioners to designate the boundaries of the lot. And the eighth section of said act provides that if execution shall be awarded for the levy and sale of any lot or piece of ground upon which a building shall bo erected, before the boundaries of the lot or curtilage which ought to be appurtenant thereto shall be designated, it shall be lawful for the court, upon application, to stay such execution until such designation shall be made, and thereupon the sale to proceed, etc.; while the ninth section of said act further provides that if the building against which any claim shall be filed as aforesaid, or any part of the ground adjacent thereto, shall be sold by virtue of an execution upon any mortgage or judgment, before the extent of the lien of the claimant shall be ascertained as aforesaid, the court out of which such execution shall have issued shall have power to determine the rights of the respective parties, and the apportionment of all liens as aforesaid, and for that purpose may appoint an auditor, and direct an issue to try disputed facts. We have here ample provisions for the protection of the owner and the lien creditor. If either is dissatisfied with the claim as filed, he can have the curtilage fixed at any time thereafter, pending an execution, or after a sale of the premises by virtue of an execution upon any mortgage or judgment. This claim was filed prior to the entry of the plaintiff’s mortgage. He had therefore record notice thereof. The third section of the act of June 16, 1836, respecting mechanics’ liens, provides for a mechanics’ lien docket, and makes it the duty of the prothonotary to “record and enter therein all descriptions or designations of lots upon which claims are filed, and to cause the names of the claimants, owners and contractors to be alphabetically indexed therein.” The purpose of this docket is to give notice to purchasers and creditors, and here they must look: Armstrong v. Hallowed, 35 Pa. 485. The plaintiff therefore knew, or is chargeable with knowledge that the lien covered both lo-ts. He had then the right to apply to the court, and have the curtilage fixed, if he thought the claim covered more ground than was useful or necessary for the proper enjoyment of the building. He did not do so; and twelve or more years after the premises had been sold under the mechanics’ lien, and had passed into the hands of an innocent purchaser, [184] he issued his scire facias upon his mortgage, for the purpose of selling both lots. This he cannot do. The lien of his mortgage was discharged by the prior judicial sale. The purchaser at that sale was protected by the judgment on the mechanics’ claim. He was not bound to look any further. This is abundantly shown by the recent case of Shryock v. Buckman, 121 Pa. 248. We cannot assent to the proposition that this claim was void upon its face because it appeared that it embraced a larger curtilage than was necessary. If we were to lay down such a rule as this, we would unsettle titles without number. The practice has been in many parts of the state for the lien creditor to include with his claim so much ground as he regarded as necessary for the enjoyment of the building. If he included too much, the owner or a lien creditor could have the curtilage fixed by proceedings under the act of assembly. In a large majority of cases the owner has acquiesced in the curtilage as defined in the claim, and in many instances the property has been sold by the sheriff as described. If we regarded the practice as erroneous, we could not at this late day declare all such liens void, and the title worthless acquired under them. Judgment, affirmed.