Blaokmar v. Sharp

• Citation: 50 A. 852,23 R.I. 412
• Parties: BLAOKMAR v. SHARP et al.
• Decision Date: 18 December 1901
• Court: Rhode Island Supreme Court

50 A. 852

23 R.I. 412

BLAOKMAR

v. SHARP et al.

Supreme Court of Rhode Island.

Dec. 18, 1901.

Petition by Jason A. Blackmar against John N. Sharp and others for the enforcement of a mechanic's lien. Findings of master in favor of defendants, and plaintiff excepts. Exceptions overruled, and master's report confirmed.

C. M. Lee and J. S. Carpenter, for petitioner.

R. N. Burbank, Page & Page, and J. J. Fitzgerald, for respondents.

TILLINGHAST, J. This is a petition for a mechanic's lien, and is now before the court on the petitioner's exceptions to the master's report. The facts in the case are well stated in the master's report, and are as follows, viz.: On January 17, 1898, the respondents Edward S. Aldrich, William F. Aldrich, Elizabeth E. Andrews, and Abby L. Chesborough sold and deeded to respondent John N. Sharp lots 29 and 30 on the John Andrews plat, situated in the city of Providence, on or near Pleasant street, for $600 each. On the same day said Sharp executed and delivered his negotiable promissory note, and mortgage securing same, back to said grantors, in the sum of $2,500 on each lot. No money was paid by said Sharp for said lots, and no money was paid by said Edward S. Aldrich and others on said mortgages at the time they were given, the same being given in consideration of the conveyance of the lots, and for future advances. The mortgagees, at the time said mortgages were executed, entered into written contracts with said John N. Sharp, whereby said Sharp agreed to erect a house upon each of said lots, and the mortgagees agreed to advance the sum of $2,500 upon each lot, less the price of the lot, payments on account of the same to be made from time to time as the houses progressed, in accordance with the terms of the contracts. These mortgages on lots 29 and 30, respectively, were recorded January 26, 1898, before work was commenced upon the houses. On April 7, 1898, the same grantors, viz., Edward S. Aldrich and others, sold and deeded to said John N. Sharp lots 20 and 21, upon the same plat, for $700 each. On the same day said Sharp executed his negotiable promissory note, and a mortgage securing the same, in the sum of $2,500 on each of said lots, to respondent Henry Hoppin, and then and there delivered the same to the Aldriches. Subsequently, on the 12th day of May, 1898, these two mortgages were assigned by said Hoppin to said grantors, Edward S. Aldrich and others, but the transfers were never recorded. No money was paid by said Sharp for said two lots, and no money was paid by said Hoppin for said two mortgages, nor by said Edward S. Aldrich and others therefor at the time said mortgages were given, the same being given in consideration of the conveyance of the lots, and for future advances. But at the time said two mortgages were executed to Henry Hoppin upon lots 20 and 21, respectively, the said grantors, Edward S. Aldrich and others, entered into written agreements with said John N. Sharp, which agreements recited said mortgages to Hoppin and the transfer thereof to said grantors, and by which contracts said Sharp agreed to erect a house upon each of said lots, and said grantors agreed to advance the sum of $2,500 upon each lot, less the price of the lot, payments on account of same to be made from time to time as the houses progressed, in accordance with the terms of said contracts. These mortgages upon lots 20 and 21, respectively, were recorded April 10, 1898, before work was commenced upon the bouses, but the said mortgages were not transferred until after such work was commenced. The four mortgages were given each for the definite sum of $2,500, and in neither does it appear that the mortgage was to secure future advances, and in no instance was the written contract recorded. In each instance the said Edward S. Aldrich and others have advanced the sum of '$2,500, less the price of the lot, but not always just in accordance with the terms of the respective contracts. They have anticipated the last payment, at least, in each instance, since the houses are not even now completed. But the mortgagor and apparent owner of the fee in said four lots, John N. Sharp, has not appeared before the master to object to any violations of the terms of the contracts, or to aught else. He came before the master once, and stated that he did not care to be notified of any future meetings. Upon no one of the four lots was any money advanced by the said respondents Edward S. Aldrich and others until after the commencement of the erection of the house upon said lot. The petitioner, Jason A. Blackmar, who, by decree of January 17, 1900, was declared entitled to a lien for work done and materials furnished in constructing sewers for the four houses erected upon said lots 20, 21, 29, and 30, in accordance with the terms of said respective contracts, made his contract to build said sewers with John N. Sharp in October, 1898, commenced work thereon early in November, 1898, and finished same November 26, 1898. The amount of money due said petitioner for constructing said sewers for and upon said lots 20, 21, 29, and 30, as aforesaid, the master finds to be $206.30, which, by agreement of counsel, is to be divided equally between said four lots. Upon these facts the master found the law applicable to the case to be as follows: "(1) That the validity of mortgages for future advances is well established, and when recorded they have priority over subsequent incumbrances; (2) that it need not appear upon the face of the mortgage that it is for future advances if the extent of the incumbrance can be readily ascertained from the record; (3) that in such case the agreement under which the advances are to be made need not be recorded; (4) that, where there is an obligation on the part of the mortgagee to make advances, such mortgage is operative against junior incumbrancers from the date of its record; (5) that, when the mortgagee is bound to make the advances, such mortgage is valid as against a junior incumbrancer, to the extent of advances made within its terms, whether such advances are made before or after the mortgagee has notice of the subsequent lien." Applying these principles to the case before him, the master found that the said four mortgages, now held by Edward Aldrich and others, had priority over the petitioner's lien, to the amount of $2,500 each, with interest, together with the expenses sustained by the Aldriches in attempting to foreclose the same, up to the time when they were enjoined by the court. Objections to all of said findings of law were duly taken before the master, and it was also stipulatedby the parties before him, and made part of his report, that, in filing exceptions to said report, neither party should be limited to the. objections thereto, by him raised before the master. The petitioner alleges that each and every conclusion of law contained in the master's report excepting the first, is wrong and erroneous, and he has duly excepted thereto.

From the foregoing statement of the case, it will at once be seen that the main question presented for our decision is as to the priority of the incumbrances in question. That is, does the petitioner's statutory lien, which has been duly established, take precedence of said mortgages, or do the mortgages take precedence of said lien? Our statute gives a lien, under certain conditions, for all work done, and for all materials used in the construction, erection, or reparation of buildings, etc., which work and materials "have been furnished by any person before any other lien which shall have originated subsequent to the commencement of such erection, construction or reparation on such land." Gen. Laws R. I. c. 206, § 1. This statute is evidently based upon the principle that vested rights of purchasers or incumbrancers of real estate, and reciprocally the liens of mechanics thereon, cannot be affected by other rights subsequently accruing. It is hardly necessary to say that the general assembly, by mentioning "subsequent" liens in said statute, must have had in mind the fact that there might have been prior liens, which were to retain their preference. In short, the statute, in effect, plainly provided that the priorities of lienors, of whatever class, shall be fully protected. Bassett v. Swarts, 17 R. I. 215, 21 Atl. 352. If A. at a given time holds a valid subsisting mortgage, duly recorded, on land of B., he has a lien on said land, by virtue of his contract with B., and nothing which the latter may do, or which any other person outside of A. may do, by way of contract or otherwise, regarding said land, can take away or prejudice A.'s rights therein. And what is true as to a mortgage lien is equally true as to a mechanic's lien, which is in the nature of a mortgage (Briggs v. Titus, 13 R. I. 138), under said statute. If, by virtue of a contract with the owner of the land, a mechanic has commenced the work of construction or reparation thereon, his lien attaches from that moment, and nothing which the owner of the land or any other person may subsequently do will be allowed to cut under and come in before him, in the enforcement of his lien. That is, as said by this court in McDonald v. Kelly, 14 R. 1. 339: "The statute gives the mechanic's lien precedence over any other lien which originates after work began." To determine as to priority, therefore, amongst different lien holders, it is only necessary to decide who has the first right or lien, unless it has been displaced by some act of the party holding it, which shall postpone him to subsequent claimants. Phil. Mech. Liens, § 225. With these general and elementary principles in mind, we are to inquire how they bear upon the facts in this case. We will take the transactions in question in their logical order. (1) On January 17, 1898, the respondent Sharp bought two lots of laud on the John Andrews plat in Providence, for $600 each. He paid no money for said lots, but gave a...