Soule v. Hurlbut , 58 Conn. 511 ( 1890 )

Loomis, J.

This is a complaint to foreclose a mechanic’s lien for labor and materials furnished by the plaintiffs in the erection of a barn on land owned jointly by Walter F. Hurl-but and Hattie R. Hurlbut, his wife. The facts found by the court are in substance as follows:

Walter F. Hurlbut and his wife purchased the premises in question August 80th, 1886, and immediately went into possession and continued to occupy the same until after this suit was brought. In March, 1887, Mr. Hurlbut contracted with the plaintiffs to build a barn on the premises. They commenced work and furnished materials for the barn April 2d, and completed it on the 16th day of April, 1887. They placed their mechanics’ lien thereon within sixty days after the completion, on June 10th, 1887.

• The mortgage deed held by the other defendant, Erastus J. Hurlbut, to which it is sought to give priority to the plaintiffs’ lien, was not executed and recorded until June 2d, 1887, after the commencement of the services and the furnishing of materials by the plaintiffs. This mortgage originated as follows: Walter F. Hurlbut and his wife on August 30th, 1886, gave their note to Camp for $2,000, and to secure the same gave him a mortgage of the premises, which was then duly recorded. At the same time Erastus J. Hurlbut, the father of Walter F., gave a joint note with his son to Camp for $2,000, payable to him on the first day of April, 1887. It was agreed between the father and son and his wife that if the father should pay the note on the first day of April the son and wife would give him their note for $2,000 and secure the same by a mortgage of the premises. The father, residing three or four miles out of the village, on the 31st of March, 1887, sent by one Todd the sum of $2,000 to his son to be paid over to Camp to take up the note, and on the next day it was so paid.

The father sent the money expecting and believing that his son and wife would make their note and mortgage in pursuance of their agreement forthwith, and cause the mortgage to be duly recorded, as they resided next door to the town clerk’s office. But through the mistake or negligence of the son the mortgage was not given and recorded until the 2d of June, 1887. The father in the meantime supposed that all this had been done on the first day of April, 1887.

The court finds that the plaintiffs had no knowledge of the above arrangement except as follows: About the time one Titus, as agent of the plaintiffs, contracted to build the barn, he inquired of Walter F. if the deeds of the premises were made; and he replied that they were, and that his father gave his note for $2,000.

The pleadings raised sundry issues affecting the validity and extent of the lien, all of which were decided in favor of the plaintiffs, except the claim that the lien attached to the undivided interest of Hattie R. Hurlbut, the wife, in the premises, which the court overruled. But the court found that the plaintiffs’ lien upon the undivided half of the premises owned by Walter F. Hurlbut was subject to a mortgage executed and recorded June 2d, 1887, in favor of the other defendant, to whom the premises afterwards and before this suit had been conveyed. The objection to the ruling of the court exempting from the lien the undivided interest of Hattie R. Hurlbut, although at first assigned for error, was expressly waived by the counsel for the plaintiffs before this court; so that the sole question for our consideration now is, whether there was error in holding that the mortgage of Erastus J. Hurlbut was prior in right to the lien of the plaintiffs upon the undivided half of the premises owned by the. defendant Walter F. Hurlbut.

The record shows that the plaintiffs’ lien attached on the second day of April, 1887, when they commenced furnishing their labor and materials, and as the mortgage to which the court gave priority was not executed till two months after that date, the error of the court is manifest, unless the facts found are sufficient to give an equitable existence to the mortgage in question more than two months before it had any legal existence.

The statute, (Gen. Statutes, § 8018,) explicitly declares that the mechanics’ lien “ shall take precedence of any other incumbrance originating after the commencement of such services or the furnishing of such materials.”

Ordinarily the question of priority can be easily and conclusively determined simply by comparing the date of the commencement of the claim for materials or service with the date when the other incumbrance was received for record in the town clerk’s office, and the owner of the mechanics’ lien has the same rights as any incumbrancer by mortgage would have to rely on the state of the land records at the time as conclusive in his favor. He must however act in good faith, and have regard to facts of which at the time he has knowledge affecting the rights of others, as well as to facts which appear or fail to appear of record. So that facts existing in his own mind not appearing of record, may in equity prevent the state of the record from being conclusive as to his rights of priority. And this brings us to consider the precise claim of the defendants in the case under consideration.

It is found that on the 80th of August, 1886, at the time Walter F. and his wife purchased the premises of one Camp for the sum of four thousand dollars, they gave their note to Camp for two thousand dollars, and secured it by a mortgage back of the premises purchased, and that for the balance Walter F. and his father Erastus J. Hurlbut gave their joint note to Camp for two thousand dollars payable on the first of April following, and it was then agreed between Walter F. and wife and Erastus J. that if the latter paid the note when due, then the former would give their note for the same amount and secure it by a second mortgage of the premises, and that Erastus J. made the payment accordingly, relying upon the agreement to give the mortgage, and he supposed it had been so given on that day.

This it is claimed created in the father an equitable lien or mortgage, commencing on the first of April, 1887, and good against the lien of the plaintiffs commencing the next day, provided it appears that the plaintiffs had knowledge of the arrangement prior to the second day of April. We accept this as embodying a true principle of law. But the controlling question is, whether the plaintiffs had the requisite knowledge to bring this case within the principle stated. The only notice, actual or constructive, that is claimed is, that about the time (March, 1887,) that the agent of the plaintiffs contracted for the building in question, he inquired of Walter F. if the deeds of the premises were made, and he replied “that they were, and his father gave his note for two thousand dollars.” The sole point of inquiry was whether the deeds had been given, which was answered in the affirmative, and assured the plaintiffs’ agent that the person with whom he was about to make a building contract owned the land, so that there would be security for the outlay the plaintiffs were asked to make. To show how he was able to obtain the premises it was perhaps natural to add, as he did in substance, that his father helped him; or to give the language literally, “his father gave his note.” This might import either that the note was given to some third party to raise money to pay for the property, or that it was given directly to the vendor. But it gives no hint and raises no suspicion that am1- such special contract between Walter F. and his father had been made as is now relied upon. In view of the obvious point of inquiry it would seem most natural for Walter F. to refer to the agreement with his father affecting the title, if any such existed. So that the omission might well operate to furnish confirmation that the title was all right, instead of being doubtful in any respect. Moreover, the statement as made would seem even misleading as to the existence of any such incumbrance, for its natural effect would be to lead the mind of the inquirer away from anything done as affecting the property to satisfy the father, to something done to satisfy the vendor and induce him to give the deed. But whatever weight such speculations may have, we feel confident that the fact referred to falls far short of notice, actual or constructive, of the existence of any contract creating an equitable lien or mortgage in favor of the father. In anticipation of such a result the counsel for the defendants made the further claim that the fact referred to would at least show that the purchase money had not been paid, and therefore it would amount to notice of the existence of a vendor’s lien. The notice to the plaintiffs’ agent referred to a transaction then about seven months past, and of course indicated nothing as to any payments made or as to the amount then due. But we prefer to waive that and assume that if any vendor’s lien could exist for the benefit of the father the plaintiffs were put upon inquiry relative to its continued existence and relative to payments.

Could there be any such lien under the circumstances of this case? If there be no such thing as a vendor’s lien in this state no further answer could be required. Up to this time the doctrine has not been recognized, except in a way to leave the question doubtful. It has been somewhat discussed in several cases, but finding its determination unnecessary for the disposal of any of the cases the court has hitherto avoided a decision of the question. Watson v. Wells, 5 Conn., 468; Dean v. Dean, 6 Conn., 287; Meigs v. Dimock, 6 Conn., 458; Atwood v. Vincent, 17 Conn., 575; Chapman v. Beardsley, 31 Conn., 115; Hall v. Hall, 50 Conn., 104.

The circumstances of the present case will allow the court consistently and with propriety to avoid any decision .of the question again. There are several other independent answers to this claim. In the court below the only claim of a lien in favor of the father was founded solely upon the special agreement that he was to have a mortgage, and such claim seems to us utterly inconsistent with the claim of a vendor’s lien. But if not inconsistent, and if we apply to this case the doctrine of a vendor’s lien as it obtains generally in other jurisdictions, it will be seen that, there can be no such lien in this case, for there is no vendor here to claim and enforce it, and none of the defendants show or claim any authority from or under the vendor to claim the lien. It is very generally held by the courts of other states that a vendor’s lien is personal and not assignable, and that there can he no subrogation. Such we understand to be in substance the doctrine as held by the courts of Arkansas, California, Georgia, Illinois, Iowa, Maryland, Mississippi, Missouri, North Carolina, New York, Ohio and Tennessee. But in the case at bar there was not even a pretense of any assignment from, tlie vendor. Moreover the vendor himself had no lien that he could assign, for in those states where the lien is recognized it is generally considered well settled that the taking of security beyond that of the vendee, whether personal, or by way of mortgage upon the same or other real estate, or by pledge or mortgage of personal estate, either for the whole or part of the purchase money, will ordinarily be considered sufficient evidence of a waiver of the lien. Manly v. Slason, 21 Verm., 277; 2 Swift’s Digest, top p. 128; 8 Parsons on Contracts, 278; 1 Jones on Mortgages, 2d ed., §§ 207, 213; 2 Story’s Eq. Jur., § 1226, note 11 Schnebly v. Ragan, 7 Gill & Johns., 120; Note to same case, 28 Am. Dec., 195; Cupper v. Spotteswood, 1 Saund., 21.

There was error in holding that the mortgage or lien in favor of Erastus J. Hurlbut was prior in right to the lien of the plaintiffs, and to that extent the judgment is reversed.

In this opinion the other judges concurred.