Hinckley & Egery Iron Co. v. James

Mechanic’s Lien. Gen. Sts. e. 108, ss. 8, 4. A mechanic’s lien established under the provisions of ss. 3, 4, c. 108, Gen. Sts., takes effect when the requisite memorandum is filed in the proper office, the same as a mortgage of that date. It cannot take precedence of a prior mortgage. Such a lien covers only such of the material furnished as is so attached to the realty as to be a part of it at the time the memorandum is filed.

Appeal from the Court of Chancery. The bill, which was brought to enforce a mechanic’s lien, alleged that in March and April, 1874, the orator entered into certain contracts with defendant James, who then resided in Boston and owned a steam saw-mill in Norton, whereby it was agreed that the orator should put a new steam engine and a gang of saws, with shafts, belts, pulleys, &c., into said mill, enlarge the boilers therein, and furnish all material and perform all- labor necessary therefor, and that the defendant should pay therefor 17,028.87 on completion of the work, and 16,400.58 in six months thereafter ; that the contracts were duly performed by the orator before November 4, 1874 ; that on that day, the town of Norton never having been organized nor had a town clerk, the orator filed in the county clerk’s office a writing signed by itself by Thomas N. Egery, its president, wherein it claimed a lien on the mill, the land connected therewith, and all the steam engines, boilers, gang-saws, shafts, belts, tools and machinery then therein, and caused the sa.me to be there recorded. The bill then alleged subsequent proceedings by the orator by way of actions of assumpsit wherein the property whereon the lien was claimed was attached, resulting in judgments for the orator for the sums claimed, and record thereof in the county clerk’s office; and alleged that the land, mill, engine, &c., were thereby held for the payment of said judgments, which were a lien thereon. The bill further alleged that defendant Stetson was interested in said mill by way of mortgages, whereby he claimed to'hold said property, but that if the land and mill were held thereby the other property could be taken from the premises without injury to the mill and was held by virtue of the lien ; and charged that the mortgages were not an incumbrance prior to said lien. Prayer, that the orator be decreed to have a prior lien on all of the property for the amount of its judgments, or at least a lien on the engine, boilers, shafts, saws, belts, pulleys, and all of the machinery in and about the mill, and that the same be taken therefrom and sold at auction in payment of said judgments, and for general relief. The answer of defendant Stetson alleged that his mortgages existed long before the orator furnished any materials or did any work as alleged in the bill ; denied that the property described in the bill or any of it was held. for the payment of either of the orator’s judgments; denied that the orator had any lien prior to said mortgages ; alleged that the engine, boilers, saws, &c., could not be taken out of the mill without injury to the mill, but that, on the contrary, a great part of said machinery was so situated ' as to form a part of the foundation and support of the mill, and could not be separated therefrom without doing great injury to both mill and machinery. The answer was traversed and testimony taken. At the March Term, 1878, Essex County, it appeared that defendant James had filed a disclaimer, and Ross, Chancellor, dismissed the bill as to him by the orator’s consent without costs and without prejudice ; and ordered and decreed, pro forma, that as to defendant Stetson the bill be dismissed with costs. Appeal by the orator. All of the proceedings to establish the lien have been in accordance with the law, and the orator is entitled to a mortgagor’s remedy by way of foreclosure. It is a sufficient answer to the claim made on the mortgages to say that they are prior to the transactions out of which the lien arises — that Stetson lent neither credit nor money on the strength of the property added to the realty. The equity of the orator’s lien is superior. Davenport v. Slants, 43 Vt. 546 ; Cochran v. Flint, 57 N. H. 514. The property added by the orator is personalty. Gen. Sts. c. 108, ss. 5. 6; Wetherby v. Foster, 5 Vt. 136 ; Tobias v. Francis, 3 Vt. 425 ; Hill v. Wentworth, 28 Vt. 428 ; Fullam v. Stearns, 30 Vt. 443, 452 ; Bartlett v. Wood, 32 Vt. 372 ; Cheshire Institute v. Stone, 52 N. H. 365. But it makes no difference whether it is personalty or not. The law gives the orator a lien on it. No valid lien was ever perfected. The pretended lien is defective in several particulars. The labor and materials furnished have become a part of the realty, so that Stetson’s mortgages are a claim thereon prior to the orator’s, even if the latter were valid. Christian, J., in Green v. Phillips, 26 Grat. 752 ; Sweetzer v. Jones, 35 Vt. 317. See Harris v. Haynes, 34 Vt. 220 ; Hill v. Wentworth, 28 Vt. 428. If they have not become a part of the realty, how can the proceedings to perfect a lien apply ? The statute makes no provision for liens upon personalty. Gen. Sts. c. 108, s. 3. Some of the things furnished, at least, are such as the statute does not apply to. If so, the entire lien fails. Safford v. True, 33 Me. 283 ; Bioknell v. Trickey, 34 Me. 293 ; Parsons v. Tinker, 36 Me. 384; Bobbins v. Bowker, 38 Me. 130 ; Perkins v. Pike, 42 Me. 141. The lien cannot be an incumbrance prior to the defendant’s mortgages. Kenney v. Gage, 33 Vt. 302.