Barstow v. McLachlan

Mr. Justice Sheldon delivered the opinion of the Court: This was a petition filed April 26, 1876, by Lachlan and Thomas McLachlan, for the use of John M., Henry C. and Calvin Durand, against Isaac W. Bangs, Dean Bangs, Lyman Baird, George Sawin and William H. Bradley, to enforce a mechanic’s lien on four certain lots of ground, under a contract in writing dated January 6, 1875, between McLachlan Bros, and Bangs Bros., whereby McLachlan Bros, agreed to build and complete by May 1, 1875, four stone-front houses on the lots, for which Bangs Bros, were to pay $28,000 in certain specified payments. Decree was entered April 18, 1878, declaring a lien, and for the payment of $2144.69, with interest at 6 per cent per annum from the 17th day of January, 1876. The .record was taken to the Appellate Court for the First District on writ of error, and the decree reversed for correction, with specific directions to the circuit court to find the amount- due, including interest. In all other respects the decree was, by effect of the order of reversal, affirmed. This appeal is from a-decree of the Appellate Court. It is assumed that the claim in question had been’ assigned, and the point is made that the McLaohlans had no interest in the debt for which the lien was sougiit, and that th.e assignees of the indebtedness acquired no right to the lien, -the lien not being assignable.. All the foundation for the assumption of an assignment is, that the suit was commenced for the use of the Durands. There is no averment in the petition or proof of an assignment to them. The mere bringing of the suit for their use we do not regard as tantamount to an allegation of an assignment of the claim -to them, and as properly raising the question whether a mechanic’s lien is assignable. The petition was, subsequent to its filing, amended by striking out all averments as to the suit being for the use of the Durands. The real assignment which was made to the Durands is in evidence, showing that it was only for some real estate, and no assignment of the payments under the contract. One of the McLachlans, too, testifies that no assignment of the claim had been made by their act." This objection is based upon the further fact that under a creditor’s bill on the part of other creditors against the McLachlans, a receiver had been appointed for them. We can not think that the mere appointment of a receiver under a creditor’s bill would release the lien. It does not appear that the receiver has ever laid claim to this demand, or in any way interfered with the suit. All that the proceedings upon the creditor’s bill show, is the appointment of the receiver, and an order to make an assignment to him. By the terms of the contract one of the stipulated payments was $6000 in hardware, per order, and it is objected that a lien does not attach for payments to be made in hardware. The stipulation to pay $6000 in hardware became, in default of payment, an obligation to pay in money. The objection is without force. To procure the means for building, Bangs Bros, borrowed $24,000 of the Phoenix Life Insurance Company, and on January 1, 1875, made four bonds, for $6000 each, payable to the order of said company, and to secure their payment, on the same day executed four deeds of trust to Lyman Baird, trustee, conveying the four lots in question, respectively. On June 3, 1875, Bangs Bros, borrowed $2000 of the Union Trust Company, of Chicago, and to secure the payment of the saíne executed their deed of trust, of that date, of one of the lots to George Sawin, trustee. The beneficiaries in these deeds of trust were not made parties to the petition, but the trustees only, Baird and Sawin. Appellants Barstow, Rawson, and the Union Trust Company, were made parties, of their own motion, February 1 and 6, 1878, and answered the same days, setting up their several interests, and how acquired, as follows: Barstow purchased two of the lots at a sale under the Baird trust deeds, made November 23, 1876, for $13,000. Rawson purchased one other of the lots (lot 2) at a sale under the Sawin trust deed, December 7, 1876. And the Union Trust Company was the legal holder, by indorsement of the Phoenix Insurance Company, of the outstanding $6000 bond, secured by the Baird deed of trust on lot 2. The point is made that the court erred in finding the lien, even if one existed, superior to the interests of.Barstow, Rawson, and the Union Trust Company, and section 28 of the chapter on liens is relied on, which is as follows: “No creditor shall be allowed to enforce the lien created under the foregoing provisions as against or to the prejudice of any other creditor, or any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable.” It is insisted that under the above provision the beneficiaries in the above deeds of trust should have been made parties to the present proceeding within the six months named, in order to have subjected these interests acquired under the deeds of trust to the lien; that it was not enough to have made the trustees alone parties; that the trustee is not in such cases the representative of the indebtedness. It is sufficient for the disposal of this ground of objection to the decree to say, that this limitation of the statute was not in any way set up in the circuit court, at least, by plea .or answer, and no objection taken to not having made the cestuis que trust parties. The Statute of Limitations must either be pleaded, or insisted on by the answer, to entitle a party to the benefit of it. Mitf. Ch. Pl. 273; Day v. Dunham, 2 Johns. Ch. 191. Barstow, in his answer, simply denies that the petitioners have any lien paramount to the interest acquired by him; and Rawson and the Union Trust Company make, as their ground of defence, the appointment of the receiver. There are three items of amount as to the findings upon which error is assigned. They present only questions of fact which were submitted to the court upon conflicting oral evidence. Without reviewing the evidence we will say, that after a careful examination of it we find no sufficient reason for disturbing the finding of the court below upon these questions of fact and of the amount due. The judgment of the Appellate Court will be affirmed. Judgment affirmed.