Johnson v. Pike , 35 Me. 291 ( 1853 )

Wells, J.

— It is contended, that the plaintiff has sustained an injury, by the neglect of Seth Greenleaf, the defendant’s deputy, to make an attachment of the real estate of Elijah D. Johnson on the tenth day of August, 1846. But the real estate of the debtor, which the officer was directed to attach, had been conveyed by him to Leonard W. Russell, in September, 1844. Russell gave to Johnson a written agreement to convey the premises to him, dated Nov. 2, 1844. On the 24th of March, 1846, another contract was made, by which Russell agreed to convey the premises to Johnson, upon the payment of a sum of money, named in it, in one year. This contract was assigned, July 17, 1846, by Johnson to Henry True. It is said that the assignment was invalid because it was without consideration. None is mentioned in it. But on the same day when the assignment was made, Russell conveyed the premises to True, for a consideration recited in the deed of three hundred dollars. It also appears, that on the tenth of December, 1845, Johnson conveyed all his interest in the same land to I. P. Emerson, for an alleged consideration of five hundred dollars, and Emerson certifies in the margin of the deed, that he acted as the agent of True in taking it, and that it was executed to him for the benefit of True. The second contract from Russell might have been intended to be held by Johnson for the benefit of True, and the arrangement made in good faith to enable him to obtain a deed from Russell. An apparent consideration is disclosed, and there are no facts from which a fraudulent intent can be inferred. Johnson therefore at the time of the attachment had no interest in the land.

Nor can the claim by lien prevail, it is true, that the items of the account, excepting one, had accrued before the assignment. But no lien could arise under the statute, c. 125, § 37, except against the owner of the land, or a mortgager, upon some contract for labor or materials made with him. Russell was the owner, but he made no contract with any one for repairs, and his estate could not be charged with them against his consent. And Johnson had no power by virtue of the agreement with Russell for the purchase of the estate, to incumber it by a lien. Johnson’s interest in the estate uuder the agreement, although attachable by his creditors, so long as he owned it, was not made subject by the statute to any lien. One furnishing materials for repairs to the holder of such agreement has no priority over other creditors or purchasers.

But it is contended, that the plaintiff had a lien upon the half of the premises owned by Samuel Soule, and that it was lost by the want of a valid attachment. Soule made a contract with Johnson, the debtor, to repair his part of the mill. He being the owner might create a lien upon his own property by such contract, and under the statute, the plaintiff could claim the benefit of it, though the contract for the repairs was made by Soule with Johnson, the debtor.

But if a lien at any time existed against the property of Soule, it appears to have been lost by the course, which the plaintiff pursued. The letter of the plaintiff, dated July 7, ] 846, shows very clearly, that the items of his account were then overdue. The date, of the last item mentioned in the letter, is March 2, 1846, and the inference to be drawn from its date is, that it was then due, and that the items prior in date were due at that time, if not before. The account then existing was due more than ninety days before the commencement! of the action against Johnson. The preservation of the lien required, that the action should be commenced, and an attachment of the premises made, within ninety days from the time when payment becomes due. R. S. c. 125, § 37 and 38.

There is one item of the account against Johnson, which appears to have accrued on the twenty-third day of July, 1846, and the action was brought in season to preserve the lien on that charge. But it having been united with the other items, the lien for which was lost, and judgment having been taken for all of them, the lien to secure the payment for that item was also lost. Lambard v. Pike, 33 Maine, 141.

'But it is contended, that the defendant is not at liberty to show, when the debt really became due, because it would contradict the time alleged in the writ against Johnson, and that the defendant is concluded by the judgment against Johnson, from showing when the payment for the articles furnished actually became due. But the plaintiff claims a lien against Soule, and if none existed, or if it once existed, and was lost by his own conduct, then he has suffered no detriment by the alleged neglect of the defendant’s deputy in making the attachment. If the requisitions of the statute had been followed, and the lien had been perfected, Soule’s interest in the mill might have been held. But it would have been so held by force of the facts, by which the lien was established, in conformity with the statute, and not by any estoppel against Soule arising from the judgment against Johnson. For Soule is neither party, nor privy to that judgment, and it would be a gross act of injustice towards him, if he were not permitted in subsequent litigation to show, that there was in fact no lien existing upon his property, when the judgment was rendered. Soule, not being a party to the judgment, would have a right to controvert those facts, which, it is alleged, lay the foundation for the lien. By the evidence now exhibited, it is very manifest, that there was no lien upon Soule’s part of the mill, when the judgment was rendered, and that this result was produced by the action of the plaintiff himself. If the officer had attached all, that the plaintiff says he ought to have done, it would have been of no service to him. A levy upon the interest of Soule in the mill, would have proved entirely ineffectual, because the plaintiff had failed of securing his supposed lien upon it. It is in vain for the plaintiff to complain of an omission of duty on the part of the officer, who made the attachment, when a full and complete performance of it, in its broadest extent, would have been of no service to him.

According to the agreement of the parties, a nonsuit must be entered.

Siiepley, C. J., and Howard, Rice and Hathaway, J. J., concurred.