Chertok v. Morang , 228 Mass. 598 ( 1917 )

Braley, J.

The defendants, while saving exceptions to the refusal to give their thirteen requests, have argued only the question of the validity of the bond under R. L. c. 197, § 28, or as an instrument at common law. The bill of exceptions is meagre, but the trial judge was warranted in finding, that a petition to establish a mechanic’s lien was brought on February 25, 1915, in the Municipal Court of Brookline, and that on April 27, 1915, the petitioner’s lien was established and an order of sale was to issue; that on April 27, 1915, a bond to dissolve the lien was filed by the respondent, the debtor, being the bond in suit; that on April 30, 1915, judgment was entered for the petitioner, his lien was established and, the respondent having appealed, all the papers including the bond on June 5, 1915, were transmitted to the Superior Court from which they were returned to the Municipal Court of Brookline on October 29, 1915, where on December 15, 1915, “an order was handed down by the court that the petitioner’s lien be dissolved and that the said order of the court entered April 30, 1915, in so far as it ordered a sale of the property be vacated and that the order of sale issued November 1, 1915,. be returned and that the validity of the petitioner’s claim be reaffirmed,” and that the decree of sale was duly returned to the court. It further appears that on December 15, 1915, the court ordered the bond delivered to one Walter A. Powers, and that on the same day the bond “was received and entered for record” in the registry of deeds for the county where the land lay.

The proceedings were instituted before January 1,1916, and the case is not within St. 1915, c. 292, but is governed by R. L. c. 197, § 28, as amended by St. 1906, c. 223, and St. 1909, c. 237. It is of course plain that upon the establishment of the lien the property would be charged for the amount under an order of sale. R. L. c. 197, §§ 17, 20. But, even if a bond had been given as provided in § 28, as amended, the lien would not be dissolved unless within ten days after its approval the bond was recorded by the obligor in the-registry of deeds for the county or district where the land lies. And under § 28, it is not until such record has been made that the lien is automatically discharged and the obligee may take the bond from the registry, and upon the lien being established enforce it as a security taking the place of the property.

The bond was duly approved on April 23,1915, and, not having been recorded within ten days after approval, the lien never has been dissolved. R. L. c. 197, § 28, as amended. Powers Regulator Co. v. Taylor, 225 Mass. 292, 297.

The plaintiff however contends that it is enforceable at common law. The instrument being under seal a consideration is conclusively presumed, and there was evidence from the filing of the bond in court by the obligor to justify a finding that it had been delivered for the petitioner’s use. Graham v. Middleby, 185 Mass. 349. Tompkins v. Wheeler, 16 Pet. 106. It appears from the record that after the bond had been filed the court ordered the lien dissolved, vacated the order of sale and ordered “that the validity of the petitioner’s claim be reaffirmed.” It is however unnecessary to determine whether the court had jurisdiction to enter the order of dissolution. The petitioner can have but one satisfaction of his claim or judgment. If the plaintiff prevails in the present action and the judgment is satisfied, he cannot enforce the lien and, if he attempts enforcement, injunctive relief can be given in equity to the landowner. Bruce v. Anderson, 176 Mass. 161. Brooks v. Twitchell, 182 Mass. 443, 444.

The landowner also under such circumstances can compel a discharge of the lien shown by the record in the registry of deeds if upon request the plaintiff refuses to act. Sawyer v. Cook, 188 Mass. 163. The condition of the bond is that “if the said principal obligor shall, within thirty days after the final judgment . . ., pay to the party claiming the same [lien] the sum of $500, ... or so much of said sum as may be necessary to satisfy any amount for which such property may be found to be subject to such lien in such suit, then this obligation shall be void.” But there is no requirement that the lien shall be dissolved before the obligation attaches, and, having delivered the bond instead of filing it in the registry, and without obtaining any discharge of the lien, and thirty days having expired after the entry of final judgment, the trial judge correctly ruled that the action could be maintained. Wall v. Kelly, 209 Mass. 370, 372, and cases cited.

Exceptions overruled.