Davidson v. Stewart

Knowlton, C. J. This is a petition to enforce a mechanic’s lien for labor and materials upon a lot of land and five houses thereon, in the erection of which houses the labor and materials were furnished. When the contract was made there was a duly recorded mortgage on the land. Afterwards, while the work was going on, the lot was divided into four smaller lots. At a later date three of the lots were released from the mortgage, and still later the mortgage on the other lot was foreclosed by a sale, the proceeds of which were no more than enough to satisfy the mortgage. The respondents contend that the lien cannot be enforced against the three remaining lots, because of the releases and the foreclosure. By virtue of the contract and the work done under it a lien was acquired upon the whole lot, which was divided subsequently. But this land was subject to the rights of the mortgagee. The petition is to enforce the lien upon the whole large lot, which includes the four smaller lots. Except as against the title held under the mortgage, the lien is established. The release of three of the lots from the mortgage leaves the lien with full effect upon them, while the foreclosure of the mortgage on [396] the other lot leaves nothing remaining in that upon which the lien can continue in force. The judge rightly refused the rulings requested and established the lien. It can be enforced and given effect only upon so much of the original lot as has not been taken out from under the lien by the foreclosure of the mortgage. The provisions of the contract in relation to payment in part by notes did not deprive the petitioner of his right to a lien. Payment has not been made, except of the amount credited. The judge, decided rightly that the note afterwards returned was not accepted as an absolute payment. Exceptions overruled.