Heath v. Tyler

Grason, J., delivered the opinion of the Court. The bill of complaint in this case was filed for the sale of Mrs. Heath’s house, No. 597 Lexington Street, against which the appellee had filed a mechanics’ lien on the second day of June in the year 1874. The proof shows that Joseph Gr. Wilson was the owner and builder of a row of four houses on Lexington Street, numbered 595, 597, 599 and 601, and that the appellee furnished the lumber for them upon Wilson’s order as it was needed for the houses. The last item of lumber which was furnished for these houses, was delivered on the 11th day of August, 1873. The appellee had been furnishing lumber to Wilson for other houses also, and in April, 1873, Wilson conveyed to Tyler, the appellee, No. 601, one of the four houses on Lexington Street, the net purchase money of which amounted to $8837.69, after the appellee had deducted from the price to he paid what it cost him to finish the house after the purchase. This sum was deducted from the sum then due by Wilson to the appellee, made up of balances due for lumber furnished for other houses, as well as for the four houses on Lexington Street, and the balance remaining due to the appellee was the sum for which the lien in this case was filed against No. 597, the house of the appellants. In January, 1874, Wilson conveyed house 597 to the appellants, who took possession of it and rented it to Wilson. It further appears in proof, that Tyler was anxious to have payment of the balance due him amounting to a little over nine hundred dollars, and spoke to Wilson about it, and it was arranged between them that he should furnish more lumber for the house 597 so as to preserve the right of lien, and accordingly a small lot of flooring was sent to the house and receipted for by Mrs. Wilson, the price of the lumber thus sent amount [317] ing, with the charge for hauling, to $8.49. It appears that the appellants had no knowledge of this transaction whatever, and it took place months after the house had been conveyed by Wilson to the appellants, and after the appellee had knowledge of the conveyance. There is no proof that this lumber was needed to finish the house, or that it was ever used in its construction. On the contrary, the proof shows that it could not have been so used, for the carpenter who did the work, testifies that he finished the house on the 28th day of March, a week or ten days before this flooring was delivered. The Court below, very properly rejected this charge and deducted the amount from the account, because the lumber was furnished merely to keep alive the lien ; but sustained the lien because it had been filed within six months from the date of the completion of the building. The 23rd section of Article 61 of the Code provides that, “Every such debt shall be a lien until after the expiration of six months after the work has been finished, or the material furnished, although no claim has been filed therefor, but no longer, unless a claim shall be filed at or before the expiration of that period.” This section has reference to two distinct points of time from which the continuance of the right of lien exists; first, the time when the material is furnished, second, the time when the work is finished. These times are, from the necessity of the case, different times; for the materials must be furnished before the work can be done. A construction of the section, which would extend the time for filing a lien by the material man for six months “after the work has been finished,” would make all liens upon buildings run from the same time, and not from different times, and would render utterly useless and inoperative the words, “ or the material furnished.” This would be a violation of the rule “that the whole statute is to be taken together,” and be “so construed as to give force and effect to every part.” [318] Sedgwick on Stat. & Const. Laws, 238. The statute gives the right to a lien to two classes of persons, first, to those who do the work, and second, to those who furnish materials, and they are both provided for in the 23rd section. The mechanic and workman has his lien for six months after the work has been finished, the material man for six months after the material has been furnished. This is obviously the true construction of the 23rd section, and the Court below erred in holding, that a material man was given a lien for six months after the completion of the building. In this case the last lumber, which could possibly have been used in the construction of the appellant’s house was furnished more than nine months before the lien was filed, and, therefore, the appellee’s right to a lien was lost. (Decided 8th March, 1876.) ■ The decree appealed from will he reversed and the bill of complaint dismissed. Decree reversed, and hill of complaint dismissed.