Charleston Lumber & Manufacturing Co. v. Brockmyer

Greek, Judge, announced the opinion of the Court: This case involves an enquiry into the extent and character of the mechanic’s lien under our statute, chapter 139 of Acts — 591 — 1872-3. The statute itself 2d section, page 460 provides expressly, that “ such lien shall have priority over every lien created by deed or otherwise on such house or other building and appurtenances and the lots, on which the same are erected, subsequent to the time when such labor shall be performed and material furnished.” This would, it seems to me, by its clear language give a lien from the time when the labor commenced on the buildings or the material commenced being furnished, though by the 3d section thirty days, after the labor has ceased or the material has ceased to be furnished, are given within which to record the lien: Thus for a time it is a secret lien. The mechanic’s lien under our statute begins from the day, when the work is begun, according to what is, I think, its plain meaning. Similar statutes have been generally so construed. See Wells et al. v. Canton Co., 3 Md. 234. The material furnished and work done under the second section must in the language of the statute be furnished and done “ by virtue of a contract with the owner or his agents”; and the lien attaches to the lot or lots, on which the building is erected, as well as to the mere building itself. On the other hand it would seem apparent from the words of the statute above quoted, that it would have priority over a subsequent lien on the lot or lots, on which the building was erected, though this lien did not include the house. It would seem obvious, that it would not have priority over any antecedent lien on the lot itself, and that such antecedent lien, when the building was erected on the lot, would include a lien on the building, it being necessarily a part of the lot and annexed to it permanently. In some of the states by special ■ provisions of their statutes the antecedent lien would be good only on the lot, as it was unimproved,«while the mechanic’s lien would have priority on the building itself, which would be separately valued ; but there is no such provision in our statute, and without it no such separation of the lot from the building on it can be made. Under our statute the vested rights of third persons, neither parties nor privies to the contract for building or furnishing materials, cannot be prejudiced by the mechanic’s lien. Mechanics like other persons are bound to ascertain for themselves the nature of the interest of — 592 — their employer. Brown v. Sullivan, 5 Pike 221; Associates of Jersey Company v. Davison, 5 Dutcher 422. Equity raises no lien in reference to real estate except that of a vendor for his purchase-money; and the lien of the mechanic must therefore be subordinate to that of the vendor of the land, on which the building is erected, for the unpaid purchase-money ; and the court cannot in the absence of any statutory provision undertake to give to the mechanic a lien against a previous vendor’s lien on any part of the purchase-money, for which the lot and building might sell because of its enhanced value by reason of the erection of the building. See Orr v. Batterton, 14 B. Mon. 100. The owner of the land, with whom or with whose agents the contract must be made under our statute, is not simply the legal owner, but it includes also an equitable owner; nor need he be the owner in fee, he may own any interest in the land, but the mechanic’s lien will of course be confined to a lien on his interest in the land. Thus a mechanic’s lien may be created on a tract of land, when his employer has but a covenant to convey the land, which is afterwards conveyed to him; but if at the time he got the conveyance, he gave a mortgage on it to a third person to secure money advanced to make a payment on this land, the mechanic’s lien would not have priority over such mortgage, because the covenantee would have had but an instantaneous seizin of the land. See Thexter v. Williams et al., 14 Pick. 49. And much more obviously if the employer of the mechanic as in this case had only a parol contract for the land and when, after the building was erected, he got a deed for it, on the face of which the vendor’s lien was retained, the mechanic’s lien must yield precedence to the vendor’s lien ; for in such a case there was not a moment of time, when the employer of the mechanic had any title legal or equitable, which Avas not subject to this vendor’s lien, which existed always and prior to the employment of the mechanic. This conclusion is deducible from the cases of Seitz v. The U. P. Railroad Co., 16 Kan. 134, syllabus 2 and 3; Hayes v. Fessenden et al., 106 Mass. 228; Hilton v. Merrill, 106 Mass. 528; Rollin v. Cross, 45 N. Y. 770; Loonie et al. v. Hogan, 9 N. Y. 435; Craig v. Swinerton, 15 N. Y. (8 Hun) 147. .These cases also show, that unless the statute so pro — 593 — vides, the consent of the holder of the legal title, that the person, who has agreed to purchase the land of him, shall or may erect a building upon it, will not make the interest of the legal owner of the land liable to the mechanic’s lien arising from a contract by the mechanic with the party, who has agreed to purchase the land. Of course if the building was erected on the responsibility of the legal owner of the land, and the person, who had agreed to purchase it, in his contract with the mechanic acted as the agent of the legal owner, his interest in the land would be bound by the mechanic’s lien, as he would then come within the express words of our statute ; but neither his consent, that the building might be erected by the person, who had agreed to buy the land of him, nor his knowledge, that he was having it erected on credit, would make the legal owner responsible for the debt incurred nor his interest in the land liable to the mechanic’s lien. The above cases sustain this position and show further, that to meet the supposed hardships of the case some States have by their statute-law enacted, that under such circumstances the giving by the owner of his consent to the erection of the building by another, who hada contract of purchase with him, should render the interest of the legal owner of the laud liable to the mechanic’s lien. Our statute has no such provision ; and this itself is sufficient to show, that the express consent of the legal owner and his knowledge, that the buildings were being erected on credit, would not subject his legal interest in the land to the mechanic’s lien. Nothing under such circumstances under the very words of our law could subject his interest in the land to such lien except a contract by himself or his agent with the mechanic. It is therefore obvious, that neither under the statements in the original bill nor in those of the supplemental bill could the plaintiff have a right to priority over the vendor’s lien of the Smiths. For there is not even a pretence, that the-Smiths made any contract with the plaintiff, or that Brockmyer in making his contract with the plaintiff acted as the agent of the Smiths or pretended to so act. It was the duty of the plaintiff, if it intended to look to the mechanic’s lien on the building as its security, to have seen to the title or interest of its employer in thelot; for under our law only that interest,, when the furnishing of the ma — 594 — terials commenced, could be subject to the mechanic’s lien. The supplimental bill therefore did not vary the case stated in the original bill; and the court did not err in deciding, that the Smiths had the first-lien on this house and lot. The next enquiry is: Did the plaintiff have any lien on this land ? In considering this question we will at first assume, that it complied with all the requirements of the mechanic’s lien-law. The defendant, Mrs. Catherine Brock-myer, was, when they contracted with her, a married woman. If she had not her separate estate in the lot, on which this house was built, it is obvious, they would have acquired no mechanic’s lien upon it, whether they contracted with her husband alone, or whether she. joined with her husband in the contract. Our law says, section 2, chapter 139 of Acts of 1872-3, page 460, that to give rise to the mechanic’s lien, the work done or materials furnished must be done or furnished “by virtue of a contract with the owner of the land or his agents.” This contract, which gives rise to the mechanic’s lien, must be of course a legal contract, one binding on the parties to it. At common law a married woman could make no legal contract, and slie cannot now, unless she be the owner of a separate estate. It follows therefore, that if she were not the owner of a separate estate in the lot, on which this building was erected, the plaintiff could not possibly have a mechanic’s lien on this lot or on the building erected on it. This position is sustained by all the authorities. See Fetter v. Wilson et al., 12 B. Mon. 61; Johnson v. Parker, 3 Dutch. 241. But if the married woman has a separate estate in the land built on, the reason, why a mechanic’s lien could not attach to her land under the common law, evidently does not apply ; for to the extent, to which she could by her own contract or act bind her separate estate, to that extent and to that extent only could her contract with a mechanic give rise toa me-, chanic’s lien under our law; for this lien is based by our law solely on this contract. In accordance with these views the courts have held, that a feme covert by her contract with a mechanic may give rise to a mechanic’s lien on her separate real estate. See Greenleaf et al v. Beebe et al., 8 Ill. 520; Collins et al. v. Megraw et al., 47 Mo. 497; Dearie et ux. v. Martin, 78 — 595 — Pa. St. 57. And as we liave decided, that by bo contract can a marriéd woman (except by joining with her husband in a formal deed and being privily examined) bind the corpus of her real estate, it must follow, that she cannot by any contract, which she can make, give rise to a mechanic’s lien, which would bind the corpus of her real estate. But we have decided, (see Radford et al. v. Carwyle et al., 13 W. Va. 572) that she may by a contract bind the rents and profits of her separate estate during the continuance of her marriage. It must therefore follow, that by a contract with a mechanic to build a house on her separate real estate or by a contract with any one to furnish material for such a building she may create a lien under our law, which will render the rents and profits of the building so erected, so long as the marriage continues, liable to the payment of said lien in preference to any lien, which she and her husband could subsequently create by uniting in a deed. But such lien could only be enforced, as other debts of a married woman .are enforced, by renting out the property from year to year during the continuance of the marriage. It follows, that the vendor’s lien of the Messrs. Smith has priority over the debt or lien, if it be one, of the plaintiff, and it is a lien on the corpus of the real estate of Mrs. Brockmyer, while the lien, if there be one, of the plaintiff is merely on the rents and profits of the building and lot during the continuance of her marriage. They being thus liens on distinct subjects and in no manner connected, they ought not to be enforced in the same suit, especially as the enforcement of one utterly destroys the other. It is insisted, that the plaintiffs bill might to have been dismissed, because the allegations in both the bill and the supplemental bill fail to show, that the plaintiffs have failed to perfect their mechanic’s lien as required by law ; but admitting this, it does not follow, that the bill should be dismissed. On the contrary, as the bill unquestionably states facts, which show, that Mrs. Brockmyer was indebted to the plaintiff,, and that she had separate real estate, this house and lot, out of which the plaintiff as simply her creditor had a right to enforce the payment of its debt by renting out the same during the continuance of the marriage, the plain — 596 — tiff, though he mistook the extent and character of his remedy, would nevertheless under his general prayer for relief be entitled in this suit to have the bouse rented out during the continuance of the marriage to pay its debt, which is all that it could do, if it had a good mechanic’s lien. The decree of the circuit court therefore of January 6, 1876, is erroneous and should be reversed. The only decree, which the court could properly have rendered, was one declaring, that the Messrs. Smith had a vendor’s lien on the corpus of Mrs. Brocljmyer’s house and lot, and that it had priority over the debt or lien of the plaintiff, and that the Messrs. Smith and their wives were improperly made defendants to this bill, and dismissing the bill as to them at the plaintiff’s costs and ordering the house and lot to be rented to pay the debt of plaintiff from year to year till the further order of the court, which renting should have been continued till the plaintiff’s debt was paid, or so long as her marriage continued, or until the house and lot were sold to satisfy this vendor’s’lien in an independent suit for that purpose instituted by ths Messrs. Smith, if they thought proper to institute such a suit. But if such sale should be made under the vendor’s lien, it would convert Mrs. Brockmyer’s separate estate in real property to a separate estate in personal property; and therefore the surplus, which this house and lot might bring, over what was necessary to satisfy the vendor’s lien, being personal property, it might and should be applied to her debt to the plaintiff. But a sale having been already made under the decree of January 6, 1876, though the decree be reversed, under the provisions of the Code of West Virginia, chapter 132, section 8, page 630, it wmuld not affect the title of Mrs. Mary K. Gillard, who bought at the sale under this decree, and whose sale was confirmed by the decree of June 10, 1878, unless this decree should also be x-eversed by this court. This decree ought to be reversed because of the inadequacy of price under the circumstances set forth in the statement of the case. « But before the court confirmed this sale by its decree of January 10, 1878, the plaintiff tendered his supplemental bill, which asked a review of the decree of June 10, 1878, on two distinct grounds, one of which was after-discovered evidence, — 597 — and the other was error on the face of the decree of June 6, 1876. The first ground, we have seen, was insufficient to justify a review or reversal of the decree of June 6, 1876, inasmuch as the newly discovered facts, if true, would not have altered the real case stated in the bill. But the second ground for the review, that the decree was erroneous on its face, was, we have seen, a good ground for the review, as there was such error on its face. The court therefore by its decree of January 10, 1878, instead of refusing to permit this supplemental bill or bill of review to be filed ought to have permitted it to be filed, and ought to have reviewed and reversed the decree of June 6, 1876, and set aside the sale made under it instead of confirming the sale as it did. This decree is appealed from and is for these reasons erroneous and should be reversed. The decrees therefore of January 6, 1876, and June 10, 1878, must both be reversed; but the appellants are not entitled to recover their costs in this Court, as they do not substantially prevail here; and this Court proceeding to render such decree, as the court below ought to have rendered dismisses the plaintiff’s bill as to the defendants, the Messrs. Smith and their wives, and adjudges, that they recover of the plaintiff their costs incurred in the .circuit court, and remand this cause to the circuit court with instructions to set aside the sale of the house and lot to Mrs. Mary K. Gillard and to have the moneys, w'hich have been paid by her on such sale refunded, and her purchase-money bonds given up, and such other steps taken, as will restore her to the position she was in, before such purchase was made by her, and otherwise to proceed with this cause on the principles laid down in this opinion and further according to the principles governing courts of equity. Judges JohNson and Haymoed CoNcurred. Degrees Reversed, Cause RemaNded.