Jackson v. Sloan , 2 E.D. Smith 616 ( 1855 )

"WoodRuff, J.

The views expressed in the case of Quimby vs. The same parties, — on appeal from the Marine Court decided at the July General Term, — may be taken as my opinion upon the demurrer in this cause. There were some considerations in that case peculiar to a proceeding in the Marine Court, but the opinion there given regarding this proceeding as a statute proceeding, is conclusive of this case, though brought in another tribunal of more extensive jurisdiction.

Precisely what the plaintiffs mean by their averment, that the conveyance referred to in the complaint was “ subject to the plaintiffs’ rights under the act,” &c., I do not understand. If it was meant that a lien was specifically reserved to these plaintiffs by the instrument itself, then it is not stated intelligibly enough to enable me to see that the averment is descriptive of the instrument, or that the instrument operated to give the plaintiffs a lien, if they have no lien independent of the instrument. If it was meant that the legal operation of the conveyance was to leave the property still liable to be affected by a lien to be thereafter created, or in other words, if it was meant to say, as matter of law, that notwithstanding the conveyance, the filing of the subsequent notice operated to give a lien, then the decision to the contrary above referred to must dispose of this demurrer, and judgment thereon must be ordered for the defendant^., with costs; as I do not see that any amendment can avail to enable the plaintiff to sustain his action.