Montgomery v. Keystone Fibre Co. , 1896 Pa. Super. LEXIS 156 ( 1896 )

Opinion by

Orlady, J.,

This is an appeal of the East Stroudsburg Lumber Company, Limited, from a decree of the court of common pleas of Monroe county, confirming a distribution made by an auditor of a fund arising from sale of the real estate of the Keystone Fibre Company, and dismissing the exceptions filed by appellant thereto.

The Keystone Fibre Company, a corporation, was the owner of a tract of land, upon which were erected certain buildings described in appellant’s lien as follows:—Paragraph Third, “ The said buildings are described as follows, viz: The first one is a two story brick, intended for the manufacture of wood fibre ware, main building 178 feet long and 42.8 feet wide, and wing attached 178 feet long and 20 feet wide; the second one is a one story frame building, intended for a store house, 105 feet long and 45 feet wide. Both are situated on the east side of Washington street in the borough of East Stroudsburg, county of Monroe, and state of Pennsylvania, and the whole tract of land upon which said buildings are situate, being the same premises which Robert W. Reynolds, trustee, by deed dated January 27, 1894, and recorded in the office for recording deeds &e at Stroudsburg, and in and for the county of Monroe, in Deed Book Vol. 45, Pg. 78 &c, granted and conveyed to the Keystone Fibre Company.”

On January 24, 1894, the company executed, and placed on record a mortgage for the real estate on which these buildings were erected, to secure a series of bonds, to Robert W. Reynolds trustee for twelve thousand dollars, ($12,000). On July 28, following a lien amounting to five hundred and eighty-six & dollars, ($586.09), was filed by appellants, by the description above given: “ for materials furnished for and about the erection and construction of said buildings, viz: lumber and mill work generally .... for and about the erection and construction and upon the credit of said buildings and for the improvement of its real estate, which said buildings and the said materials furnished, in the erection and construction there of were necessary for the improvement of said real estate, and convenient for the use and enjoyment therof.”

On September 3d following, Montgomery & Co., the appellants, secured a judgment against the Fibre Ware Co. upon which writs of execution were issued, resulting in a sale of its real estate, December 8, 1894 (divested of the lien of the mortgage by agreement of the trustee), for the sum of fifty-five hundred dollars (15,500) which sum less costs etc. is the fund in court for distribution.

Prior to the sale of the real estate, and during the life of the writs of execution, the brick building above described was destroyed by fire.

The auditor, appointed to distribute etc., awarded the whole fund to R. W. Reynolds, mortgagee and trustee, against the claim of the East Stroudsburg Lumber Company, under their lien as material men, and found as facts, that the brick build? ing was the main'one, and the frame structure was appurtenant thereto, located about thirty-eight feet distant therefrom, and held as matter of law that, as the lien was not apportioned, the destruction by'fire of the main structure extinguished the lien on the remaining appurtenance. The distribution made by the auditor was adopted and confirmed by the court below. The five assignments of error are to the decree of the court, dismissing the exceptions filed to the auditor’s report, and its absolute confirmation.

The appellant’s argument is directed against the conclusions of law, as well as the findings of facts as determined by the auditor'. An examination of the testimony, determines as facts, that the Keystone Fibre Company acquired title to the lot of ground by deed dated January 21, 1893, to Robert Reynolds, in trust for the company, who (Reynolds) by deed of January 27, 1894, conveyed the title to the Keystone Fibre Company, a corporation. The frame building had formerly been used as a skating rink, and was on the ground when the company purchased it, and afterward was enlarged and changed in location to be the better adapted to its intended use. It had no original relation to the brick structure, the latter being built after the first had been completed. They were not connected as buildings, but used in connection with each other, the brick building being for the manufacture of wood fibre, and the frame for the storage of the product. The buildings were used for a common purpose. The property was the Keystone Fibre Company Plant, as called by one witness, and as such both buildings were necessary parts of the whole.

The lien filed was “ entire, against the main building or manufactory and its appurtenances, known as the plant of the Keystone Fibre Company,” as described by the auditor, and as mentioned in the lien as follows: “ the said buildings and lot or piece of ground and curtilage appurtenant thereto.” The description of the property in paragraph third of the lien is an averment that the whole of the buildings and machinery (including the brick building) constituted one plant, the works of the Keystone Fibre Company: Linden Steel Co. v. Mfg. Co., 158 Pa. 288.

The description of a property is a sufficient compliance with the act of assembly in furnishing “ such other matter of description as shall be sufficient to identify it: ” 1 Trickett on Liens, sec. 62.

What was the legal effect of the destruction by fire of the brick building prior to the sale? The auditor decided the case on the faith of Wigton & Brooks’s Appeal, 28 Pa. 161, which case is based entirely on Presbyterian Church v. Stettler, 26 Pa. 246. In the last named case, the lien was for “ tin roofing, etc.,” on a church building which was soon thereafter consumed by fire. The court held the land was discharged for the reason “ when the ground ceases to be covered by such building before the lien was filed, the lien ceases as a matter of course.” In Wigton & Brooks’s Appeal, supra, the court held “when the building ceases to exist by its being destroyed by fire, or any other accident, the lien having no longer anything to attach itself to, or in which it can inhere, is gone.” The facts show the total destruction of “ a large building forty-three feet higii, two hundred and fifty feet long, with two wings, fifty feet square each, on the same lands; the buildings and ground being designed for holding agricultural and other public exhibitions, the grounds were graded and inclosed with a high tight board fence, with entrances, ticket offices, stalls and pens for cattle, extending around the greater part of the inclosure. There was a gas works erected in a separate building for the purpose of lighting the main structure,” of which the court observes: “ The stalls, ticket offices, gasometer, and shed over it are the mere' appurtenances to the main building, and these liens are not filed specifically against them, nor I imagine could they have been: as incidents they follow the fate of the principal. In some of the claims these outside erections are not named at all, in others they are merely referred to in general terms as appurtenances pertaining to the convenient use of the main building, which alone is described in the manner required by the law. These claims only purport to bind the sheds, fences, etc., as appurtenances to the building; that being destroyed, they cease to be appurtenant. It cannot be claimed that although no longer bound as appurtenances, they may be as separate and independent structures, for in that point of view the liens filed are wholly worthless for want of necessary and legal description.” These cases are self sustaining, but are not conclusive against the lien in this case. This lien was filed against the whole plant or works as such, with specific description of the building and curtilage. The material was delivered on the faith and credit of the works, and property of the owner, and applied to and used in both structures. The building, held by the auditor to be appurtenant, was erected as a separate and independent structure before the building to which it is claimed to be appurtenant was built. It may well be urged that every structure of a large manufacturing plant is appurtenant to every other .structure used in connection with it, but to hold that the destruction by fire of one of such buildings would result in discharging the whole plant of mechanics’ and’ material liens, would be carrying Wigton & Brooks’s Appeal much further than was intended. Neither building was superior to the other; each and both were necessary to the successful operation of the business for which they were constructed. In Linden Steel Co. v. Mfg. Co., 158 Pa. 288, one of the assignments of error raised the very question in controversy here: “lien cannot be sustained against other buildings, if the building for which the materials were furnished, and in which alone they were used, was destroyed before the date of filing the lien,” and was answered : “ this would constitute a good assignment if the lien had been against the ‘ pan house,’ but it was against the works of which the ‘ pan house ’ formed a part, and that only a small fraction of the whole subject of the lien. The cases cited, Wig-ton & Brooks’s Appeal, 28 Pa. 161, and others, have no application to the undisputed facts here.” This case was not cited before the auditor or the judge hearing the case, or doubtless the distribution would have been changed. The third, fourth and fifth assignments of error are sustained, «and the decree confirming the auditor’s report is reversed, the record remitted to the court below, that distribution be made to the lien of the East Stroudsburg Lumber Company, Limited, debt five hundred and eighty-six and X|T dollars, ($586.09), with interest to date of sale and costs. Costs of this appeal to be paid by appellee.