Kenny v. Gage , 33 Vt. 302 ( 1860 )

Barrett, J.

We are so well satisfied with the manner in which the leading question in this case is discussed and disposed of by the chancellor, in the opinion by which he prefaced his decretal order, that we deem it unnecessary to go at large into the subject. We therefore content ourselves with making some additional brief suggestions.

The statute provides that the lien shall attach from the time of filing the claim in the town clerk’s office. This of course precludes the idea of its having effect by relation to distui’b any rights, either legal op equitable, that may have been created prior to that time. Up to the time of the filing of such claim the property sought to be subjected to such lien may be dealt with in all respects as fully and freely as if it was not liable to be thus subjected. Therefore, if Rand, by virtue of the arrangement between Gage, Randall and himself, in pursuance of which he furnished the materials for the finishing of the house, acquired an equitable right, prior to the filing of the orator’s claim, to hold security upon that property, if the statute provision had not existed, we think it clear that that right was not affected by the filing of such claim in pursuance of the statute.

We are of opinion that Rand did acquire such right, not only as'to the materials thus furnished, but also as to the small note due him at the time of said arrangement. It was a part of said arrangement, without which Rand would not have entered into it, and furnished the materials, that he was to have the proposed security, as well for the note as for the materials thus furnished. As against everybody who had not a prior right, or a superior equity, the legal propriety and validity of such arrangement could not be questioned. If it was good against Gage and Randall, it was so against everybody else. As the orator’s right by way of lien dates only from the filing of his claim, it is not his province now to disturb Rand in his rights under said arrangement, which was subsequently perfected by the conveyances made between Randall, Gage and Rand.

A summary of the decision is, that the mechanic’s lien, under the statute, stands upon the same ground as a mortgage would stand, if executed at the same time as the filing of the claim, and affects existing rights, whether legal or equitable, to no greater extent than such mortgage would affect them.

The decree of the chancellor is therefore affirmed, with costs.