Wethered v. Garrett

Opinion,

Mr. Chief Justice Paxson:

This was a scire facias upon a mechanics’ lien. The owner makes no defence. The contractors, who are also sued as defendants, defend upon the single ground that the claim does not sufficiently describe the buildings. The curtilage is defined by metes and bounds, evidently taken from the defendant Garrett’s deed, and the buildings are described as “all those four certain buildings known as the palm house, two greenhouses, and pit, or lot,” etc. The primary object of the description of the buildings is identification. Upon this point there was the testimony of a surveyor, who visited the premises, and said that, owing to the peculiarity of the buildings, the location, etc., there would be no difficulty of identifying them from merely reading the claim.

We do not feel called upon to pass upon the question of the sufficiency of the description, for the reason that it is satisfactory to the owner. He makes no defence upon this ground or any other. He is satisfied with the description, and with the justness of the claim. It is the contractors who set up this defence, and we are unable to see their standing to make it. They would have the right to allege that the materials were never furnished for the buildings, or that the charge was excessive, or that the materials had been paid for. But we are unable to see how, in a proceeding in rem, — against the buildings, — they can be heard to allege that the buildings are not properly described, and that the money, which is admittedly due for materials which were placed in the buildings, shall not be a lien against the property in the hands of the owner. That is a matter with which they have no concern. It affects the owner only, and, if he is satisfied, no one else has the right to complain. The case is unique. I know of nothing like it in our books, and we would probably never have heard of this ease but for the fact that the contractors have failed, and made an assignment for the benefit of their creditors. If they can defeat this claim the money which is justly due the plaintiffs may possibly be diverted into another channel.

Judgment affirmed.

On March 2, 1891, the appellants, Wynn & Henwood, filed a motion for a re-argument calling attention to questions raised by the assignments of error but not considered in the opinion. On March 9th, the motion was refused.