Fidelity Mut. Life Assn. v. Jackson

• Decision Date: 12 July 1894
• Docket Number: 476
• Citation: 29 A. 883,163 Pa. 208
• Parties: Fidelity Mut. Life Assn., Appellant, v. Newton Jackson
• Court: Pennsylvania Supreme Court

29 A. 883

163 Pa. 208

Fidelity Mut. Life Assn., Appellant, v. Newton Jackson

No. 476

Supreme Court of Pennsylvania

July 12, 1894

Argued April 25, 1894

Appeal, No. 476, Jan. T., 1894, by plaintiff, from order of C.P. Cumberland Co., May T., 1893, No. 245, dismissing exceptions to report of auditor. Reversed.

Exceptions to report of E. W. Biddle, Esq., auditor distributing proceeds of sheriff's sale. Before SADLER, P.J.

The facts appear by the opinion of the Supreme Court.

Errors assigned were, dismissal of exceptions and entry of decree of distribution, quoting them.

The decree of the court below is reversed and the record is remitted with instructions to distribute the fund in accordance with this opinion at the cost of the appellees.

James W. Eckels, for appellant, cited: Schroeder v Galland, 134 Pa. 277; Evans v. Grogan, 153 Pa 122; Iron Works v. O'Brien, 156 Pa. 174; Nice v. Walker, 153 Pa. 123; Com. v. Curtis, 9 Allen, 271; Cowley v. People, 83 N.Y. 471; Schied v. Rapp, 121 Pa. 593; Ballman v. Heron, 160 Pa. 377.

J. W. Wetzel, for appellee, cited: Evans v. Grogan, 153 Pa. 121; Murphy v. Ellis, 153 Pa. 133; Iron Works v. O'Brien, 156 Pa. 172; Lucas v. O'Brien, 159 Pa. 535; Nice v. Walker, 153 Pa. 123.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

This is an appeal from the decree of the court below making distribution of the proceeds of the sale of the real estate of Newton Jackson. The question at issue is as to the right to file liens of certain mechanic's lien creditors, who furnished work and materials to one James Porter, who was the principal contractor, for the erection of certain buildings on the premises sold by the sheriff. The contract between the owner and the principal contractor was an ordinary building contract and contained the following provisions: "The party of the second part agrees that he will keep the lot and building free from mechanics' liens and any and all manner of charges." The auditor and court below held that this language precluded the principal contractor from filing any lien, and his lien was rejected from the distribution. But they also held that there was nothing to prevent subcontractors from filing liens, because it might be reasonably concluded that the parties meant by the foregoing language that if subcontractors should file liens, the principal contractor should remove them, and therefore that the case was brought within the rulings in Nice v. Walker, 153 Pa. 123, and Creswell Iron Works v. O'Brien, 156 Pa. 172. We cannot agree to this conclusion. The language of the clause in question, as we understand it, is absolute, and means just what it says that the contractor shall "keep the lot and building free from mechanics' liens and any and all manner of charges." That is, the lot and building shall be free at all times from mechanics' liens and any kind of charges. The lot and building would not be kept free from such incumbrances if they could be imposed at any time. They are to be kept free, and that condition could not be maintained if the liens were allowed to be filed and maintained during a continuous period and only released at the completion of the building, or some other indefinite time. If they are to be kept free they must by necessity be free all the time. It is very plain therefore that the words of the clause in question are the full equivalent of a contract not to file, or permit to be filed, by any person, any lien or charge whatever. This brings the case directly within Schroeder v. Galland, 134 Pa. 277; Benedict v. Hood, 134 Pa. 289,...