Brown v. Morison , 5 Ark. 217 ( 1843 )

By the Court,

Lacy, J.

The decision of the several points raised by the transcript in this cause necessarily involves the true interpretation of the act of the Legislature giving liens to all mechanics, artisans, undertakers or persons who furnish materials for buildings. The first inquiry is, what kind of interest or estate is chargeable with such liens ? The first and sixth sections of the act charge the legal estate. The language of the statute is, that all mechanics, undertakers, and those who furnish materials for building under contract with the proprietor or owner of any real estate, shall have a lien or preference on such materials and the houses erected, in proportion to their respective claims. It is evident that the proprietor or owner of real estate, is he who possesses the fee. The fourteenth section enlarges the lien, a*id gives it against the occupants of the soil, and the land on which the buildings may be erected, and not exceeding two acres adjacent thereto, This section makes the possessory interest of the occupant chargeable with the lien by express terms. Now it is a principle of natural justice as well as constitutional law that no one can be lawfully deprived of his property without his consent, or having compensation allowed him by due course of law. The Legislature possesses no power to divest legal or equitable rights previously vested. The legal or equitable estate may be charged with the lien, provided that does not interfere with other paramount interests or duties. The vested rights of (bird persons, who are neither parties nor privies to the contract between the tenant in possession and mechanics, cannot be prejudiced or sported away by their agreement. To allow this would be to expose the whole estate to utter ruin or onerous burdens, that would materially impair its value. The law makes it the duty of all persons, who contract, to ascertain the nature and extent of the interest they acquire. This rule imposes no greater hardship or inconvenience on mechanics than on other individuals. He, who has the fee oris tenant in possession, can be compelled to exhibit his title to the premises on which he wishes to build, and even should he refuse, the records of the courts, which are always open for inspection and examination, will readily show it and all prior incumbrances with which the estate stands charged.

The mode by which this lien may be enforced, is two-fold: First, the party may bring an ordinary suit against the debtor, and after judgment, have execution against the property charged and then against his other effects: or secondly, he may proceed against the original debtor and against every other person owning or claiming possession of the property, by scire facias. If the plaintiff elects to prose.cute his claim by scire facias (which is strictly a proceeding in rem) he is bound to show that the property is chargeable with his lieu. The eighth section of the act is express upon this point. It enacts that there can be no validjudgmenlor execution, unless it be proved that the lien attaches to the property. The proceeding in the present instance (which is a suit by scire facias) clearly demonstates that the legal estate to the lot of ground in dispute ever has b,een and still remains with the original proprietor, Jacob Brown. On the 1st of December, 1838, he sold the premises, on which the lien is said to attach, to Edward Cole forseveral obligations of him as principal and Wil liam E. Woodruff as security, payable annually thereafter at distant dates and for the sums agreed on, and at the same time binding himself by covenant to convey the lot in fee to Cole, whenever the whole amount of the purchase money was paid. No part of the purchase money, except two small obligations for the accruing interest has ever been paid to Brown, by either Cole or Woodruff, nor has hff ever executed a deed to either of them. It is certainly true that Brown has no equitable lien on the lot for the purchase money; for he parted with that lien by taking Cole’s obligation with personal security. The authorities are full and conclusive on this point. Stafford vs. Van Renselaer, 9 Cow. 316. Blight's heirs vs. Banks, 6 Monroe, 199. Brown vs. Gilman, 4 Wheat. 255.

By parting with his equitable lien, he surely did not annul the rights he possessed by virtue of his covenant. These he retained, and his plea alleges they' constitute a good bar to the action. The terms of his covenant, as well as its intendment, only bind him to convey upon the reception of the purchase money. This the agreement makes a precedent condition to the execution of the deed. A court of equity would not compel him to convey without decreeing that the purchase money be first paid him. Cole, by Brown’s covenant, acquired an equitable interest in the lot coupled with the possession, which was capable of being converted into a legal estate by the fulfilment of his part of the agreement. This possessory interest he held subject to the legal estate, and Brown could, at any moment after his failure to pay the purchase money, have ousted him of the possession. But even this inchoate equitable estate.he afterwards conveyed to Woodruff by mortgage bearing date the 13th ofDecember, 1838. This conveyance purports to be made to secure Woodruff in the payment of large sums owing him by Cole, and to indemnify him against loss for his se-curityship to Brown. It recites Brown’s covenant to Cole and authorizes Woodruff to have the deed executed to himself upon the payment of the purchase money. It passed all Cole’s equitable interest to Woodruff, and it gave him a lien upon the estate with a preference over all other claims subsequently acquired. Upon the execution of the mortgage, Cole had but an equity of an equity, or in other words, he had a right of redemption still remaining. Certainly our statute never contemplated charging this mere equity of redemption with a lien, that would defeat both the legal and equitable estate. Cole’s possessory interest, while he occupied the premises, belonged to either Brown or Woodruff, as their respective claims might be asserted, and it was held for their benefit. Both the covenant and mortgage were duly acknowledged and recorded long anterior to Cole’s agreement with Morrison and Sullivan to do the work on the building, on which the lien is now sought to be fixed; and the pleas, to which there is a general demurrer, aver that Morrison and Sullivan had an actual as well as constructive notice of Woodruff and Brown’s title; and the plaintiffs no where offer to discharge these prior legal and equitable rights. If the view here taken be correct. Brown’s plea constituted a good bar to the plaintiffs’ action. The demurrer to it was improperly sustained. The defence set up by Woodruff was mere equitable matter and therefore not pleadable at law. The plaintiffs haying elected to proceed by scire facias, were bound by the provisions of the statute to show that the property was rightly chargeable with their lien. This they have wholly failed to do, and their suit must be dismissed for want of a sufficient cause of action being shown on the trial.