Deland v. Wagner

• Decision Date: 20 March 1933
• Docket Number: No. 5684.,5684.
• Parties: DELAND et al. v. WAGNER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

62 App. DC 54, 64 F.2d 552 (1933)

DELAND et al. v. WAGNER.

No. 5684.

Court of Appeals of the District of Columbia.

Argued February 16, 1933.

Decided March 20, 1933.

John E. Laskey, Leonard J. Ganse, and Robert C. Handwerk, all of Washington, D. C., for appellants.

Frank R. Long, C. Chester Caywood, and Daniel Partridge III, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from a decree enforcing a statutory undertaking given to release a mechanic's lien.

The facts as found by the lower court are in substance as follows:

On November 15, 1927, the Edson W. Briggs Company conveyed a certain unimproved lot situate in the District of Columbia to William Howard Gaskill. On December 2, 1927, Gaskill conveyed the property by a first deed of trust to Rust and Bowie, trustees, to secure Pearl D. Clifford in the sum of $22,500 for money loaned, and by a second deed of trust to Seaford & Seaford, trustees, to secure the Edson W. Briggs Company in the sum of $10,634.

On December 12, 1927, a permit was issued to Gaskill by the Inspector of Buildings of the District of Columbia, to build a dwelling house upon the property so conveyed, and in the same month excavation was begun for the building. On February 29, 1928, the appellee, William A. Wagner, entered into a written contract with Gaskill to furnish the material and labor necessary for the heating system in the building, at the contract price of $1,217; and on March 7, 1928, Wagner entered into an oral contract with Gaskill for the plumbing work in the building at the contract price of $1,825. Wagner completed the performance of these contracts by August 28, 1928. Gaskill then paid the sum of $750 to Wagner leaving a balance of $2,292 due to him upon the contracts.

On May 7, 1928, after the commencement of work upon the building, Gaskill conveyed the property to F. Harold Deland, one of the appellants herein. On October 22, 1928, Wagner seasonably filed in the clerk's office of the Supreme Court of the District of Columbia a notice of his intention to hold a mechanic's lien against the interests of Gaskill and Deland in the property, to secure the balance of $2,292 due him for the work and materials furnished under the contracts. On October 19, 1929, Wagner filed his bill of complaint in the instant case to enforce this lien.

On November 27, 1929, the appellants Deland, as owner, and the New Jersey Fidelity & Plate Glass Insurance Company, as surety, filed in the cause a written undertaking approved by the court, whereby they agreed "that they will pay and satisfy any judgment or decree that may be recovered in any suit or proceeding that may be instituted on, or to enforce the above-entitled mechanic's lien, together with the cost of said proceeding, which judgment or decree they agree may be pronounced against all of them." Upon the filing and approval of this undertaking, the property was released from the operation of Wagner's mechanic lien. Title 25, § 368, D. C. Code.

On January 7, 1931, an order was passed by the lower court with the consent of Wagner's counsel, authorizing Rust and Bowie, as trustees, to sell the land and improvements under the first deed of trust executed to them as above stated. The property was accordingly sold and conveyed to a purchaser for the consideration of $22,500, which was the amount of the first lien.

Upon these facts, the lower court sustained the mechanic's lien of Wagner upon the property for the sum of $2,292 and interest, and held that the validity of the lien was not altered or affected by the conveyance of the property by Gaskill to Deland after the commencement of work upon the building. The court held...