Erdman v. Moore

• Decision Date: 20 February 1896
• Citation: 58 N.J.L. 445,33 A. 958
• Parties: ERDMAN v. MOORE et al.
• Court: New Jersey Supreme Court

33 A. 958

58 N.J.L. 445

ERDMAN

v. MOORE et al.

Supreme Court of New Jersey.

Feb. 20, 1896.

(Syllabus by the Court.)

Case certified from circuit court, Camden county, for advisory opinion; Miller, Judge.

Action by Daniel H. Erdman against D. Leonard Moore and others. Case certified.

Argued November term, 1895, before BEASLEY, C. J., and MAGIE and LUDLOW, JJ.

Lewis Starr and Lindley M. Garrison, for claimant.

Martin P. Grey, for builders and mortgagee.

BEASLEY, C. J. The questions to be decided relate to the mechanic's lien law. The facts were these, viz.: Moore was the owner of the premises in question, and commenced the erection of a building thereon. Before this structure was finished, he sold and conveyed the property to one Zimmerman, entering into a written agreement with him to proceed and complete the building "in a good and workmanlike manner." This agreement was signed by both Moore, the vendor, and Zimmerman, the vendee. On the day of the conveyance, and before its execution, Moore made and delivered a mortgage on the lot to one Casselman, who, in the following year, assigned it to Souder, one of the defendants, and Zimmerman conveyed the premises to the other defendant, Ellison. After the passing of the title, as mentioned, by Moore to Zimmerman, the former, in execution of his contract, proceeded to complete the building, and in the course of that work employed the claimant, Erdman, to furnish and put in a portable furnace and a portable cooking stove; and it is for doing this that a lien on the building and land is now claimed.

To this demand two defenses are sought to be erected, the first of which is that, after his conveyance of the premises to Zimmerman, Moore, the former owner, could not Incumber the property with a lien, and that, in any event, a lien so imposed could not affect the prior mortgagee. But this objection cannot prevail. The statute provides that, when a building is erected by a person other than the owner, it shall not be liable to a lien, "unless such building be erected by the consent of the owner of such lands in writing." Revision, p. 669, § 4. That the consent thus called for was given in the present instance seems indisputable, for the contract, signed by both the vendor and the vendee, in express terms obliged the former to go on and finish the building then under way. With regard to the mortgage the explanation appears to be equally plain. When the mortgagee took his incumbrance, he knew that the building was erecting, and that any lien that could be legally put upon the premises in the course of the completion of the structure would be superior to his mortgage. With this knowledge he is chargeable, for the statute provides that, upon a sheriff's sale under a judgment upon the lien claims, the purchaser shall acquire the estate which the owner had in the lands at the commencement of the building, and subject only to such mortgages as had been created and recorded prior to that event. The mortgage before us, not having been in existence at the time of the commencement of the building, must be subordinated to the claimant's lien. Gordon v. Torrey, 15 N. J. Eq. 114.

The second...