Conner v. Lewis , 16 Me. 268 ( 1839 )

The opinion of the Court was drawn up by

Weston C. J.

It does not appear to us that the rights of the petitioners, under the stat. of 1821, if they had any, have been impaired by the stat. of 1837. It is true the latter repealed all acts and parts of acts, inconsistent with its provisions ; but as it was to operate only upon contracts, thereafter to be made, contracts previously made might, with perfect consistency, be governed by the former statute.

The stat. of 1821, was a re-enactment in this State of a statute which existed in Massachusetts, at the time of our separation. It has received there a judicial construction, in the case of Thaxter v. Williams & al. 14 Pick. 49. It was there held, that the statute was intended to apply to the owner of the land. The contracting party, for whom the buildings are erected, is so denominated in the fourth section. In the first section, he is called the proprietor of the land; and the lien is made to attach to the land, or to the right of redeeming it, if it had been previously under mortgage. A right arising from a contract to purchase real estate, was not made a tangible attachable interest, until a later period. In the case cited, the true owner of the land interposed his objection, which was sustained for his protection; but it is very manifest that one of the contracting parties must be a proprietor of the land, to bring the case within the statute.

The contract for erecting or repairing any building, between the mechanic and the proprietor or proprietors of the land, upon which it may be placed, in order to create a lien thereon, is required by the statute to be recorded. This was designed to apprise purchasers of the extent and validity of the lien. The contract under consideration had, in the body of the instrument, the names of Lewis, Bigelow and Wctdleigh, as proprietors, but was signed only by Lewis, who did not assume to act for them. It could not be deduced from that paper, as recorded, that a lien attached to the estate of Bigelow and Wadleigh; and if it might be established by any subsequent testimony, the object of the registry would be defeated, and a purchaser might be entrapped. We are of opinion, therefore, that the presiding Judge erred in admitting parol testimony, to show their assent and privity, and in instructing the jury, that this might be equivalent to the execution of the instrument by them.

At the time of the contract, the title was in James Wise. It is contended, that he held it in trust for the respondents, and they being in possession, as between them and the petitioners, the respondents must be regarded as the owners of the estate. If it had been purchased with their money at the time, a resulting trust would thereby have been created. Buck v. Pike, 2 Fair, 9. But such a trust does not arise upon subsequent payments, under a contract to purchase. In that case, the trust, if any exists, is express ; and depends upon the terms of the contract. Here neither of the respondents paid at the time any part of the consideration to Kinsman, the original owner. That was all secured by the notes of Wise, the grantee. At a subsequent period, $3000 were paid to Wise by Lewis, or others associated with him; and Lewis had a writing from Wise, to convey the premises to him, upon certain conditions. It is insisted, that this amounts to a declaration of trust. It may, or may not be so. The contents of that writing, except that it was an undertaking to convey, do not appear. Upon evidence so vague, we are not at liberty to decide affirmatively, that it contained a declaration of trust. There may be reason to suspect, that Wise held for the benefit of Lewis and his associates, and that there may have been management, to prevent the lien of the petitioners from attaching, or to defeat it, but if the petitioners would predicate rights upon the existence of a trust, it is incumbent upon them to make it out upon competent proof.

It appears however, that in July, after the contract, which was made in March, Lewis deeded two thirds of the land to Wadleigh, taking back from him a mortgage, which he assigned to Hatch, so that they held two thirds under Lewis, subject to the prior mortgage to Kinsman. As Lewis was in possession, under a contract with Wise, and the contract by him with the petitioners was recorded, on a further trial, it may deserve consideration, whether Lewis, Wadleigh or Hatch can object to the lien, as to two thirds of the land. No claim is interposed in behalf of Kinsman, or his assignees; and it is not intended to make any intimations, affecting the interests of attaching creditors.

Exceptions sustained.