Mervin v. Sherman

Weight, C. J. The demurrer should have been sustained. There was no priority of contract between Nickols and Sherman. Granting that they were severally liable to plaintiff, their liability arose from and grew out of separate and independent contracts. Plaintiff was not entitled to a-mechanics’ lien by virtue of any contract made with Sherman, giving it ever so much force, for he performed no work, nor furnished any materials upon or in fulfilment of it. This right to the lien, and to recover in this action, is based upon [333] his contract with Nichols, and it was clearly irregular to ask or take a joint judgment against Nickolsand Sherman, when they never assumed any such liability. It was not improper to make Sherman a party; and for the same reason that the subsequent incumbrancers were joined, that he and they being interested, might have an opportunity to resist the lien claimed, and that the plaintiff might the more conclusively establish his lien upon the property, and against them and their respective interests. But it is quite a different thing to ask and obtain a personal judgment against him. The case of Goble v. Gale and another, 7 Black. 218, referred to by appellee, is far from sustaining this judgment. There, Turning, a subsequent mortgagee, was made a party, but no judgment was asked against him. In the Supreme Court, it was ordered that unless Gale, (the mortgagor,) or Tuining, should pay the amount found due plaintiff, “ on or before the first day of the next term, a decree would be entered for the sale of the premises.” The two cases are very unlike. In that case there was no judgment against either party; in this there is a personal judgment and an order for a special execution, and after that, upon a contingency named, for a general one. It only remains to inquire whether, from the facts stated in the petition, and especially in view of the promise alleged to have been made by Sherman, plaintiff waived his lien? We think not. A party who takes collateral security on the same contract, is not entitled to a mechanic’s lien. Code, section 1009. This means either a separate obligation attached to the contract named, to guaranty its performance; or it may be the transfer of property or of other contracts, to insure the performance of the principal agreement. And in any event, the contract, promise, or property taken, must have been intended and accepted as collateral security, before the lien could be said to be waived or defeated. The promise of Sherman, tested by these rules, was in no proper sense collateral security. The personal [334] judgment against Sborman is reversed; in all and other respects, the proceedings are affirmed.