Goldstein v. Tucker

• Decision Date: 24 May 1918
• Citation: 119 N.E. 693,230 Mass. 259
• Parties: GOLDSTEIN v. TUCKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 259

119 N.E. 693

GOLDSTEIN

v.TUCKER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1918.

Appeal from Superior Court, Middlesex County.

Suit by Barnet Goldstein against Samuel W. Tucker and another. From decree dismissing the bill, petitioner appeals. Affirmed.

E. C. Jenney and M. J. Sawyer, both of Boston, for plaintiff.

George M. Poland and Loring P. Jordan, both of Boston, for defendants.

CROSBY, J.

An interlocutory decree having been entered sustaining the demurrer to the plaintiff's amended bill, a final decree was entered dismissing the bill with costs. The case is before us on an appeal from that decree.

The bill as amended in substance alleges that the defendant MacLean had filed a mechanic's lien against the property of one Trackman and had brought a petition in the superior court to enforce the lien; that thereafter Trackman executed and delivered to MacLean a bond with sureties in due form to dissolve the lien; that on February 8, 1913, the sureties were duly approved, and therafter MacLean retained possession of the bond until September 19, 1913, when it was recorded in the registry of deeds; that on the date when the sureties were approved, the defendant MacLean agreed with the plaintiff and with Trackman that the lien was discharged and waived by the giving of the bond; that MacLean's attorney, one Ivy, told the plaintiff that the bond dissolved the lien and that a conveyance of the property could be made free from the lien; that the plaintiff ‘relying upon the statements and representations made by the said Ivy to him * * * did on the 11th day of April, 1913, purchase said real estate from said Trackman, which purchase was made only in reliance upon what the defendant by his attorney had told him. * * *’ The bill further alleges that on April 6, 1916, the defendant MacLean established his lien and on April 12, 1916, a warrant for the sale of the property was issued by the superior court and delivered to the defendant Tucker, a deputy sheriff, who was proceeding to sell the property by virtue of the warrant when this bill was filed. The plaintiff seeks to enjoin the defendants from selling the property and prays that a decree be entered that the bond operated as a dissolution and waiver of the lien, and that the warrant of sale be decreed to be void.

1. The statute provides that a bond given to dissolve a mechanic's lien shall be recorded within ten days after its approval. R. L. c. 197, § 28, as amended by St. 1906, c. 223, and St. 1909, c. 237. As the bond was not so recorded, the lien was not dissolved but remained in full force and effect. The fact that it was not recorded within the time fixed by the statute was known to the plaintiff when he purchased the property, and the fact that the defendant MacLean told him (the plaintiff) that the bond operated to dissolve the attachment cannot be held to be a waiver of his (MacLean's) rights under the lien; nor is he estopped from claiming thereunder because of his mistaken belief as to the legal effect of the bond. Its invalidity was equally apparent to both parties, and the plaintiff so far as the record shows was not misled or deceived as to any material fact; when he purchased the property, he knew that a lien had been filed upon it and that the bond had not been recorded as the statute required; and he is charged with knowledge that it was void because not so recorded. Under these circumstances he cannot invoke the doctrine of equitable estoppel against the defendant. Mackay v. Holland, 4 Metc. 69;Robbins v. Potter, 98 Mass. 532;...