Goldheim v. George R. Clark & Co. , 68 Md. 498 ( 1888 )

Stone, J.,

delivered the opinion of the Court.

The defendant, Goldheim, purchased certain houses and lots in Baltimore in November, 1885, and subsequently a mechanics’ lien was filed against the houses, and upon a bill filed to enforce the lien Goldheim, among others, was made a defendant. 'He filed two answers to the bill and set up various defences, which will be briefly noticed. The facts necessary for us to state are these :

A man by the name of Diven obtained a lease for a lot of ground fronting on Payson street, and on the same day made an agreement for the purchase in fee of an adjoining lot, separated from his leased lot by a private alley, and which lot fronted on Mary Anna street.

The object of Diven was to build on both lots, and he commenced to build on the Payson street lot, and continued on the Mary Anna street lot.

We think the evidence shows clearly that Clark & Co., the plaintiffs, furnished lumber, which was used in the construction of both the rows of houses, and was furnished under one entire contract, and Olark & Co., the material men, at the time of filing their lien claim, designated the amount claimed to be due on each building.

One of the objections urged by Goldheim is, that because the buildings were separated by a private alley the lien could not extend to them all.

This point has been directly decided in Fitzpatrick vs. Allen, 80 Pa. State, 292. The Court says in that case, that where two blocks of houses are built under the same contract and are divided by a, private right of way, there is not such a severance as will prevent an apportionment of the claim among the several houses. This decision was made under the Pennsylvania statute, which uses the term “adjoining,” which ours does not.

But if there were .no decision on the question, the 21st section of our Mechanics’ Lien Law would authorize an apportionment of the lien. That section provides that in any case in which one claim for materials shall be filed against two or more buildings, owned by the same person,, the claimant shall designate the amount he claims to be due on each building. This section certainly would authorize the lien to attach on two or more houses that might he separated by a mere private right of way or alley common to both. There is nothing in our law that contemplates that the houses must adjoin before the lien can be apportioned, and the complainant committed no-error on that point.

Another objection urged, that Diven, the builder, did not acquire an interest in the Mary Anna street lots at the-time he began to build, is equally untenable. He did obtain, by agreement, an interest in the Mary Anna street lots at the same time that he did in the Payson street lots,' and he commenced on the Payson street lots and continued his building on the others. His interest in the Mary Anna street lots, it is true, was .only an equitable interest, but such as it was, the lien attached to it.

Another objection is urged that the lien was not filed' against as large an interest as Diven, the builder., had in some of these lots at the time the buildings were begun.

Admitting to the fullest extent the law as declared in Mills vs. Matthews, 7 Md., 315, that the lien attaches only to the .interest the builder has when the building is begun, yet that will not prevent the material man from filing his claim 'against ■ a lesser, interest which the builder may afterwards acquire. For his own benefit and profit Diven, the builder, changed bis interest in the Mary Anna street lots from a fee simple to a leasehold, and increased the ground rents on the Payson street lots. Under these-circumstances neither Diven, the builder, nor any one claiming under him, will be heard to urge the objection that the lien must be filed against the larger interest. The rule that the lien attaches to the interest the builder had in the lots at the time of the erection of the building, is one for the benefit of the builder and not of the material man. The latter is presumed to know the interest of the builder, and give his credit according to his security. But there is no reason, if he so elect, that the material man may not be satisfied with less than his original security, although he cannot exact more. If the builder for his own advantage has changed the terms of a lease, or changed a fee simple into a leasehold, and the material man agrees to it, and says, in effect, you may do so, as you have retained a sufficient security for my bill, it would be glaringly unjust to allow the builder, or one claiming under him, to turn the material man out of Court because he did not pursue some other and greater interest in the lots.

(Decided 15th March, 1888.)

The release of the fee in some of the lots by the plaintiffs, which has been relied upon as another objection, is sufficiently met by the release itself, which in terms preserves the lien on the leasehold.

Decree affirmed with costs.