McCrory v. Adams

Braley, J. The premises on which the petitioners severally claim a mechanic’s lien for labor performed were subject at the date of the contracts to two mortgages, respectively described in the petitioner’s exceptions as a ground mortgage and a construction loan mortgage, to which reference hereafter will be made as the first and second mortgage. It appears that the entire parcel had been divided into building lots as shown by a plan, but each mortgage, while referring to the lots as numbered, described the tract as a whole. The first mortgage was given by a prior owner before any building operations were begun. It is impossible from the obscure bills of exceptions to trace the title of one Chronquast, who is stated to have been the owner of the equity of redemption and with whom the petitioners dealt when they contracted to perform labor on five separate houses situated on the premises, “each of said houses being on one of the lots,” as stated in the respondent’s exceptions. The liens attached only to the interest of the owner, which is described in the statement of lien as consisting of but one tract, without reference to any particular lot, although the numbers are given. If the title had remained unchanged, the petitioners subject to the first mortgage apparently could have enforced their liens against the interest in the premises of the respondent Adams, the purchaser at the foreclosure sale under the second mortgage held by the respondent Baker, as the judge’s finding which was warranted by the evidence shows, that Adams had given Chronquast authority to represent him, and in employing the petitioners he was rightfully acting in his behalf. Vickery v. Richardson, 189 Mass. 53. McDowell v. Rockwood, 182 Mass. 150. Gale v. Blaikie, 126 Mass. 274. But after foreclosure of the second mortgage, a foreclosure of the first mortgage followed, and upon delivery of the deed to the purchaser the title to all the land passed with the exception of two lots, which by their designated numbers had [58] been released by the mortgagee to Chronquast before the contracts with the lienors. It is obvious that, but for the partial release, the liens had been extinguished, as it does not appear that there were any surplus proceeds. Gray v. McClellan, 214 Mass. 92. Whelan v. Exchange Trust Co. 214 Mass. 121. The release, however, could only preserve the liens in so far as they attached to and were enforceable against the released lots. Orr v. Fuller, 172 Mass. 597. But the petition, which follows the statements of lien, shows, as we have said, no separate lien for work performed on the houses erected on these lots. The petitioners having treated the tract as indivisible and subject to liens for the entire work, it results that the liens cannot be enforced against the portion sold, and, there being no evidence on which a finding could be based as to the amount of labor any of the petitioners had performed thereon, the petition cannot be maintained as to these lots. Donnelly v. Butler, 216 Mass. 41, and cases cited. It is unnecessary to consider further the effect on the title of the foreclosure, and subsequent transfers under the second mortgage. The refusal of the judge to make the findings of fact requested by the petitioners affords no ground of exception. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. And the rulings requested became immaterial. If given, theré was no estate left to which the liens could attach, or the court could order sold, and their exceptions must be overruled. The exceptions of the respondent Baker, who was made a party presumably by reason of his having become the mortgagee of Adams and under the contention of the petitioners that with knowledge of what was going on he had consented to the completion of the houses, must be sustained. Gray v. McClellan, 214 Mass. 92, 96. The judge for reasons previously stated should have ruled, as this respondent requested, that on all the evidence the petitioners were not entitled to their respective liens. Ordered accordingly in each case.