Close v. Hunt

Dewey, J. This was a bill in equity to enforce a lien for materials furnished to build a dwelling-house. The bill states that the complainant, Hunt, at different times between the first day of April and the first day of September, 1840, furnished Close with a quantity of lumber for the construction of a dwelling-house, on certain lots in Lawrencebtirgh belonging to Close, to the amount of 293 dollars and 36 cents; that Close executed his note for that sum to the complainant on the first day of September, 1840, payable one day after date; that within sixty days from the latter period, the complainant filed in the recorder’s office written notice of his intention to hold a lien on the house for the amount of the note; and that the entire debt was still due and unpaid. The bill further states, that Close and his wife executed mortgages to various persons of the lots on which the dwelling-house was constructed; and that various other persons obtained judgments against Close. The amounts and dates of these incumbrances are stated; some of the incumbrances are older and some younger than the lien of the complainant. The defendants to the bill are Close and his wife and the incumbrancers. The prayer of the bill is, that an account of the complainant’s claim be taken; that the dwelling-housfe, and the interest of Close in the lots upon which it stands, be sold, &c.; and for general relief. The bill was filed on the tenth day of July, 1841. Some of the defendants were defaulted, and the bill taken as confessed against them; others appeared but did not an [255] swer, plead, or demur. The Court, without any testimony whatever, found a certain sum to be due to the complainant for lumber furnished for the construction of the dwelling-house; and decreed that Close pay that sum to the clerk of the Court within sixty days; or in default thereof, that the sheriff sell the dwelling-house, and the interest of Close in the lots on which it stands, at public auction, &c.; that out of the avails of the sale, the sheriff first pay the complainant his debt, and pay the costs of suit, and the overplus, if -any, into the clerk’s office to abide the order of the Court. There was also a decree for costs against all the defendants. This decree cannot be sustained. The statute, which governed this cause, required the bill to be filed within one year from the time of furnishing the materials for the construction of the dwelling-house, on account of which the lien is claimed. R. S. 1838, p. 412. The decree was rendered upon the statements in the bill without proof. The statement with regal’d to the times of furnishing the materials is very indefinite. The statement is, that the materials were furnished, at several times, between the first day of April and the first day of September, 1840. This might be true, and still more than a year have elapsed between the delivery of the last lumber furnished, and the tenth day of July, 1841, when the bill was filed. When the allegations of a bill are uncertain and indefinite, though taken as confessed, no decree should be rendered, unless the uncertainty be removed .by evidence. Pegg v. Davis, 2 Blackf. 2^1. The bill or the proof should have shown, conclusively, that the bill was filed within one year after the last lot of timber was furnished. It was also erroneous to decree that the complainant should be first paid out of the proceeds of the sale ordered by the Court. The bill shows that several of the defendants held incumbrances upon the lots ordered to be sold, older than the lien of the complainant. These incumbrancers, in the order of the dates of their liens, should have had preference to the complainant. There was error also in decreeing costs against all the defendants. The incumbrancers were not in fault, and should not have been taxed with the costs. J. Hyman and P. L. Spooner, for the plaintiffs. J. T. Brown and E. Dumont, for the defendant. Had any decree been authorized, it would have been proper for the Court to decree a foreclosure of the. equity of redemption, in respect to the several mortgages mentioned in the bill, though that is a matter not involved-in this writ of error. It is proper to remark, that Andrew S. Patterson and Ednmnd W. Cunningham, against whom a default was entered, are not parties to the bill. Elmore W. Cunningham is a party named in the bill, but nowhere else in the record. Per Curiam. The decree is reversed with- costs. Cause remanded, &c.