Cole v. Colby

• Decision Date: 22 March 1876
• Citation: 57 N.H. 98
• Parties: Cole v. Colby.
• Court: New Hampshire Supreme Court

57 N.H. 98

Cole v. Colby.

Supreme Court of New Hampshire

March 22, 1876

Lien---Attachment---Mortgage---Want of equity.

The plaintiff claimed a lien for labor expended in building houses on certain lots of land, which originally constituted one lot, owned by two of the defendants, subject to a mortgage at the time when the plaintiff's contract was made. After the plaintiff's contract was made, the other defendants acquired by purchase interests in the land,---some by mortgage of the whole original lot, and others by purchase of separate lots; and the plaintiff by his bill, and an attachment issued upon it, sought to secure his lien. Held that, on the facts stated in the bill and admitted by the demurrer, there was no occasion for the intervention of a court of chacery

FROM COÖS CIRCUIT COURT

BILL IN EQUITY, by Stephen A. Cole against James D. Colby, H. T Blakeslee, Emily S. Blakeslee, Frank P. Brown, Jacob Benton The Savings Bank of the County of Coos, and Lewis Barter substantially as follows: On August 7, 1874, James D. Colby and H. T. Blakeslee were the owners of a certain tract of land in Lancaster, situated on Railroad street, subject to a mortgage to the savings bank to secure the payment of the note of said Colby and Blakeslee to said bank, of even date with the mortgage, for one thousand dollars and interest annually. Said mortgage was given by said Colby and Blakeslee to said bank, and is dated July 24, 1874.

Said tract of land, on said August 7, 1874, had been divided by said Colby and Blakeslee into five building lots, the first of which lots is described as follows: Commencing on the southerly side of said Railroad street, ten rods easterly of said railroad land, and nearly opposite J. E. Dimick's house; thence running at right angles with said Railroad street, eight rods to a stake; thence parallel with said street 56 feet; thence at right angles with the last named line to the said street; thence on said street to the first bound.

Before said August 7, 1874, Colby and Blakcslee had erected a house upon said lot No 1. Said house and lot were and are of the value of about one thousand dollars. Said lots, Nos. 2, 3, and 4, lie in succession easterly of said lot No. 1, and are 56 feet front on Railroad street, and running back therefrom in right lines to the back line of said tract. Said lot No. 5 comprised the easterly end of said tract, being 56 1/2 feet front on said Railroad street, and running back in right lines therefrom to the back line of said tract. At said date Colby and Blakeslee had commenced to build houses upon each of the other four of said lots. On August 7, 1874, the plaintiff made a contract with said Colby and Blakeslee that he would finish said houses for them for the sum of $699.65, to be paid him by them. They, by the terms of said contract, were to furnish the plaintiff all necessary materials to do said work, as fast as wanted by him therefor.

The plaintiff immediately entered upon the execution of said contract, and would have completed the same, had the said Colby and Blakeslee furnished material therefor, as by the terms of their said contract they agreed to do, which they now refuse to do.

The plaintiff has expended in labor in the building of said houses said sum of $699.65, and has a lien upon said property to that amount, superior to said mortgage to said savings bank. Said lot No. 2, and the house thereon, are of the value of $800. Said lot No. 3, and the house thereon, are of the value of $900. Said lot No. 4, and the house thereon, are of the value of $800. Said lot No. 5, and the house thereon, are of the value of $600.

The plaintiff has expended upon the house upon lot No. 1 about the sum of $5; he has thus expended upon the house upon lot No. 2 the sum of $145; upon the house erected upon lot No. 3 the sum of $145; upon the house erected upon lot No. 4 the sum of $170; and upon the house erected upon lot No. 5 the balance of said contract price, being $234.65. The said Colby and Blakeslee, on or about September 19, 1874, conveyed the third of the said building lots to the said Frank P. Brown by deed of that date. Said Colby and Blakeslee, on August 25, 1874, conveyed lot No. 2 to said Emily S. Blakeslee, in mortgage, to secure the payment of the sum of $456; and said Colby, on September 14, 1874, conveyed the whole of said tract of land to said Jacob Benton, in mortgage, to secure the payment of two notes, amounting in all to $605. The plaintiff is informed and believes that there is in fact due to said Benton upon said notes about the sum of $125, and no more. Said Colby and Blakeslee, on October 5, conveyed the whole of said tract of land to the said Lewis Barter, in mortgage, to secure the payment of the sum of $1,707.34. The said conveyances to said Blakeslee, Benton, Barter, and Brown, and said savings bank, are all subject to the lien of the plaintiff upon said premises to secure payment to him for his labor in the...