Rose v. Persse & Brooks Paper Works

Where the owner of premises upon which a builder’s lien has attached, has conveyed away his interest in the premises, it is not necessary to make him a party to a bill to foreclose the lien. The statute with regard to a builder’s lien provides that the builder shall file in the office of the town clerk a certificate of his lien, which shall “ describe the premises.” A party having a lien on one of three paper mills, which were near each other, and belonged to the same owner, but were independent and susceptible of a separate description, described the premises on which the lien was claimed, as “ two tracts of land situated in the town of W, one bounded [&c.,] with two paper mills thereon, and the other bounded [&c.,] with one paper mill thereon,” and described the lien as “ for materials furnished and services rendered in the erection and repairs of said several paper mills.” Held, that the certificate was void as not containing a reasonably accurate description of the premises within the meaning of the statute. A party having a builder's lien took ’notes for the amount of his claim, and gave a receipt as follows : — “ Received of P. §• B. two notes, [describing them,] in full.” — Whether the lien was not discharged thereby : Quere. The court inclined to the opinion that, in the absence of proof that the receipt did not express the real understanding of the parties, it must be taken to mean that the notes were received in payment, and be regarded as discharging the lien. The statute gives a lien for materials furnished and services rendered in the construction, erection or repairs of any building. Where the materials and labor furnished were in the equipping with fixed machinery for the manufacture of paper, a building intended in its erection as a paper mill, but which was in itself a complete and independent structure, it was held that they could not be regarded as furnished for the construction or reparation of a building, and that no lien attached, to the premises in favor of the party furnishing the same.

Bills for tbe foreclosure of builders’ liens on three paper mills belonging to the defendants. The facts in the two cases are similar in all essential points, a part of the work and materials for which the liens were claimed having been furnished by the petitioner Rose individually, and a part by the copartnership of Rose & Yaughn, of which he was a member, who were the petitioners in the other bill. A statement of the case of the petitioner Rose will therefore be sufficient. The three paper mills, at the time when the lien was claimed to have commenced, in October, 1856, belonged to a copartnership by the name of Persse & Brooks, who continued to own the same until August 1,1857, when they conveyed the same to the respondents, a joint stock corporation then formed, the deed being immediately put upon record. The three mills were severally called the Atlantic, the Pacific and the Anchor mill. The Pacific and Atlantic mills stood on adjoining lots, of which Persse & Brooks held two different leases, executed, the one in 1854, and the other in 1857, each for nine hundred and ninety-nine years. The Anchor mill was about seven hundred feet from the others, on a lot by itself, separated from the other mills by lands not owned by Persse & Brooks. On the 13th of October, 1856, the Anchor mill was destroyed by fire. The plaintiff carried on business, at Norwich, as a manufacturer of machinery, and immediately after the fire was employed by Persse & Brooks to superintend the refitting of the mill with first class paper-making machinery. The plaintiff was also carrying on the foundry business at Norwich, in company with A. H. Vaughn, and the understanding was that the castings should be supplied by Rose & Vaughn, that they should be fitted by the plaintiff at his works in Norwich, and there be prepared and made ready to be put up, and that the plaintiff should personally superintend the setting up of the machinery at Windsor Locks, and put the mill into operation. The plaintiff proceeded, in pursuance of this contract, to furnish machinery and superintend the fitting up of the mill. The machinery was shipped at Norwich to Persse & Brooks, the freight was paid by Persse & Brooks, and they paid for all materials furnished and work done at Windsor Locks. On the 8th of September, 1857, the mill being nearly completed, the plaintiff presented his bill up to August 1st, which was then examined and adjusted, and the following receipt given. The notes were also given, as specified in the receipt. These notes had never been paid, and at the time of the trial belonged, and had always belonged, to the plaintiff. The receipt was as follows:— “ Received, New York, Sep. 8,1857, from Persse & Brooks, three notes, at four, five and six months, for seventeen hundred and thirty 6-100 dollars each, being in full for all bills to the first day of August, 1857. • Peleg Rose.” At the time of the settlement, September 8th, it was understood that the mill was not quite fully completed, and also that the plaintiff’s account from August 1st to September 8th remained, to be adjusted, and the plaintiff was then directed by Persse & Brooks to proceed and do what further was needful to complete the mill. The plaintiff proceeded accordingly, and was entitled to charge Persse & Brooks the sum of $50 for superintendence from August 1st to September 25th. The first charge of the plaintiff to Persse & Brooks in August, 1857, was August 20th, for boring worm gear; from August 20th to September 5th, the plaintiff’s charges, connected with the worm gear, amounted to $43.55, and from September 5th to September 25th, to $6. These charges were justly made to Persse & Brooks, under the agreement. The worm gears were forwarded to Windsor Locks in September, 1857, for the use of the Anchor mill, and were duly received; but the evidence on the subject of the actually putting up and fixing to the building of said gearing, was so indefinite, that nothing further was found than that they were received by Persse & Brooks, at Windsor Locks, for the use of the mill. During the early part of the time that the plaintiff was furnishing machinery for the Anchor mill, he also furnished some articles of the like kind, of small value, for the other paper mills of Persse & Brooks; no separate account was kept of these articles, but all went into one account. The plaintiff on the trial did not claim a lien for any articles furnished for the other mills, or any lien on any mill except the Anchor mill. The plaintiff, on the 10th of October, 1857, filed the following certificate of his lien, which was subscribed and sworn to, and put upon record, according to law:— “ To all whom it may concern: These presents certify that I, Peleg Rose, of the town of Norwich, in the county of New London, do claim to have a lien on and against all those certain paper manufacturing buildings, with the land on which the same are situated, and the appurtenances thereof, bounded and described as follows, to wit: two certain tracts of land situated in the town of Windsor Locks, in the county of Hartford, one of said tracts bounded north, south and west by lands now or late of the Connecticut River Company, and on the east by Connecticut river, with two paper mills thereon; the other tract bounded north on lands of Hannibal A. Converse, east by Connecticut river, south by land of Connecticut River Company and highway leading to Warehouse Point, and west by land of said Connecticut River Company, with one paper mill thereon; for the sum of ten thousand nine hundred and ninety and 18-100 dollars, ($10,990.18,) being the amount now justly due to me, the said Rose, for materials furnished and services and labor done and performed by me in the erection, construction, and repairs of said several paper mills, their fixtures and appurtenances; and that I commenced furnishing said materials and performing said service and labor on or about the 16th day of October, 1856, and ceased so to do on the 5th day of September, A. D., 1857. Said materials were furnished, and services and labor performed, at the request of Persse & Brooks, a copartnership doing business under that name in the city, county and state of New York, the proprietors of said land and buildings.” Dated at Hartford, October 10th, 1857. The articles furnished and put up by the plaintiff, under the agreement, consisted of the machinery of a first class paper mill, and attached and secured as is common in such factories, comprising heavy boilers, engines, pumps, bolsters, shafting, worms and worm wheels, and gearing, attached, for the most part, to the structure of the building, by large bolts, and so that it could not be removed without serious damage to the building. The respondents pleaded in bar that Persse and Brooks had, on the 1st of August, 1857, by deed duly executed and recorded, conveyed the entire estate to the respondents, for the full consideration of $450,000, which was the full and agreed value of the estate irrespective of any lien of the plaintiff thereon, and that the conveyance was made to and accepted by the respondents upon the agreement of Persse & Brooks that they would pay the claim, if any, of the plaintiff and save the respondents and the estate harmless therefrom ; and that Persse & Brooks had not been made parties to the bill, and that no proper decree could be rendered in the case so long as they were not parties; and prayed that the bill be dismissed. The plaintiff demurred to this plea, and the court held it insufficient. The respondents then filed an answer, setting up the same facts, denying the facts alleged in the bill, and averring that, if the plaintiff ever had the lien claimed in his bill, the same had been discharged by him. The plaintiff demurred to that part of the answer which related to the omission to make Persse & Brooks parties, denied the discharge of the lien, and joined issue upon the general denial of the answer. Upon these pleadings the court found the foregoing facts, and reserved the case for the advice of this court.