Hooker v. McGlone

Carpenter, J. This is a proceeding to foreclose a mechanics’ lien. The first question which presents itself is, whether the petition is properly brought in the name of George A. Hooker. The petitioner describes himself as agent, and .he was in fact the agent of Loyal Moultrop. In contracting [101] with McGlone he did not disclose his principal, but, as his custom was, made the contract in his own name as agent. In like manner the certificate of lien was filed. We think it is apparent that the contract was between Hooker and Mc-Glone ; and that the indebtedness thereon arising was legally due from McGlone to Hooker. Buffum v. Chadwick, 8 Mass., 103 ; Colburn v. Phillips, 13 Gray, 69. That being so, and this being a process for collecting the debt, we think it is well brought in his name. The fact that he will hold the proceeds as agent, or the real estate, if it is not redeemed, in trust for another, will not defeat his right of action. Potter v. Holden, 31 Conn., 385. On the 1st day of June, 1872, Thomas B. Brooks was the owner of the land on which the building was erected. By a verbal agreement McGlone was to erect on the land, at his own expense, a building, which, when completed, was to be used by Brooks and McGlone jointly for the purpose of making lamp-black. The petitioner furnished the brick for the building, commencing October 15th, and ending November 26th, of the same year. On the 9th of December, 1872, McGlone purchased and paid for the land, taking the deed in the name of his wife, who now holds the title subject to certain incumbrances. On the 19th of December the certificate of lien was filed. . The respondents claim that McGlone was the original contractor, that Hooker was a sub-contractor, and that he cannot maintain this petition for the reason that he did not give to Brooks, the owner of the land, the notice which the statute requires. There is no foundation for this claim. The statute requires notice to be given by a sub-contractor to the owner or proprietor of the building, who is to be affected by the lien. When, as in this case, a third party is the owner of the land, and he is not to be affected by the lien, no notice to him is necessary. The petitioner was an original contractor. When the supplies were furnished McGlone was the equitable owner of the building, and when the lien was filed he was also the equitable owner of the land, at least so far as creditors were [102] concerned, of wliom the petitioner was one. No notice to Brooks therefore was required. This consideration also disposes of the second, and the only remaining question made by the counsel for the respondents, which is, in substance, that no lien could properly attach in favor of any one, inasmuch as Brooks, the owner of the land, had never contracted to pay anything for the building. This record also presents another question, which, although not discussed by the respondents’ counsel, we will briefly notice, as it has recently received the attention of this court; and that is, to what extent do mechanics’ liens attach in cases where the owner or proprietor of the building is not the owner of the land ? In the present case McGlone owned the building, and as that was erected by the consent of the owner of the land, he had also a qualified interest for the time being in the land itself. We think that the lien attached to the building and to the interest, such as it was, which he had in the land, and ought to be enforced as against him. When he purchased the land, had he become the owner of the legal title, his equitable interest in the building and land would have merged in his legal title, and the whole would have been subject to the lien. The deed to the wife must be regarded as in the nature of a voluntary conveyance from her husband to her, and therefore the legal title in her is subject to the same equities that it would have been subject to in him. It would be manifestly unjust to allow the husband to defeat the petitioner’s claim by the mere circumstance of taking a deed in his wife’s name instead of his own. As she paid nothing for the land we do not see how she can complain if the land, as well as the building, is appropriated to the payment of her husband’s debts. Indeed counsel make no claim in her behalf. The report of the committee is silent in respect to the subsequent incumbrances. Whatever incumbrances existed, as appears from the petition, originated after the filing of the petitioner’s lien, and when the record disclosed the nature and extent of his claim. [103] Upon the facts as stated we are of the opinion that the lien is valid and that the petitioner is entitled to a decree. The Court of Common Pleas is advised accordingly. In this opinion the other judges concurred.