Ernst v. Reed

The lien which a contractor for the erection of "a building acquires by filing a notice with the county clerk, under the mechanics’ lien law, (Laws of 1851, ch. 513,) attaches only to the legal right, title and interest of the owner, then existing. If, previous to the filing of such notice, the owner has parted with his interest in the property, no lien is acquired. Where the grantor in a deed hands the same to another with instructions to deliver it, as his agent, presently to the grantee, the delivery not depending upon any condition, as between the parties to the deed, the title passes at the time of the delivery to the agent.

ACTION of ejectment to recover possession of a house and lot on southerly side of 48th street, in the city of New York. The plaintiff claimed title by virtue of the following facts : On the 25th of May, 1860, Thomas S. Brooks being the owner of lots on 48th street and 2d avenue (of which the lot in question was one,) made a contract with Charles Huber, by which Huber was to furnish the brown and blue stone for twenty houses, to be erected on the lots, as specified in a written contract, for the price of $16,400. On the 17th day of May, 1861, Huber filed a lien with the county clerk, upon the twenty houses and lots, in pursuance of an act of the legislature, passed July 11, 1851, claiming a balance due on his contract of $1,396. On the 2d day of September, 1861, Huber- commenced proceedings against said Brooks, in the Court of Common Pleas, in pursuance of the statute, for the foreclosuse of said lien; and on the 22d day of April, 1861, a judgment was duly , entered in the said court, adjudging the defendant Brooks indebted to the plaintiff Huber, in such action, in the sum of $1,597.63, on said contract, (including costs,) and that said Huber had a valid lien,, for such amount, on said twenty houses and. lots ; and further decreeing a sale by the sheriff “ of the interest which the said Thomas S. Brooks had, on the 17th day of May, 1861, in- the premises.” The said interest was sold, in pursuance of the= decree, by the sheriff; and on the 24th day of June, 1863, the sheriff executed to Charles Huber, the purchaser, a deed of the same, reciting judgment, sale, &c. August 3d, 1863, Charles' Huber and wife conveyed the same by deed to Nicholas Ernst, the plaintiff in this action. The defendant claimed title to the premises by virtue of the following deeds r ' 1st. Deed of Thomas S. Brooks and wife to Christian Hetzel, dated May 1st, 1861; acknowledged May 9th, 1861; recorded May 30th, 1861. 2d. Deed from Christian Hetzel and wife to Edgar Beed, the defendant, dated September 14, 1861; acknowledged September 19, 1861; recorded October 17, 1861. The plaintiff claimed and pr.oved on the trial: 1st. That the deed from Brooks and wife to Hetzel was not delivered to, nor accepted by Hetzel until after May 17, 1861, subsequent ' to the filing of the lien by Huber. 2d. That at the time Hetzel received the- deed he had actual knowledge of the filing of the lien of Huber. The court directed a verdict for the plaintiff, holding that as the deed from Brooks and wife to Hetzel was not delivered to, nor accepted by, Hetzel until subsequent to the filing of the lien by Huber, it was inoperative as against such deed. Judgment was entered upon the verdict, and the defendant appealed.