Goodro v. Tarkey
| Decision Date | 04 November 1941 |
| Citation | 22 A.2d 509,112 Vt. 212 |
| Parties | HARRY C. GOODRO v. WILLIAM J. TARKEY |
| Court | Vermont Supreme Court |
October Term, 1941.
Mechanics' Liens.---1. Wholly Statutory.---2. Contract with Subcontractors Basis of Lien by No. 37 of the Acts of 1896.---3. Misnomer of Action, P. L. 2687.---4. Mechanics' Lien Action Determines Amount Due Plaintiff.---5. Attachment of Property Necessary to Perfect Lien.---6. Recovery on Mechanics' Lien By Foreclosure Not Execution, P. L. 2686, No. 55 of Acts of 1935.---7. Owner's Equity of Redemption Foreclosed, P. L. 2687 2689.---8. Mechanics' Lien Against Property of Non Contracting Party is Quasi In Rem. P. L. 2687.---9. Form of Action Same for Judgment In Personam or In Rem.---10. Contractor Not Necessary Party in Mechanics' Lien Proceedings, P. L. 2687, No. 55 of the Acts of 1935.
1. Mechanics' liens are wholly statutory.
2. Prior to No. 37 of the Acts of 1896, no mechanics' liens could be created in favor of a person performing labor or furnishing materials by virtue of a contract or agreement with an agent, contractor or sub-contractor of the owner of the property.
3. An action specifically brought under a statute providing for mechanics' lien is not defeated by terming the action one in contract, P. L. 2687.
4. An action on the statute for a mechanics' lien is not an ordinary action of creditor against debtor but is an action to determine the amount due the plaintiff which is secured by the lien.
5. Attachment of the property upon which a mechanics' lien is claimed is a necessary incident to the action on the statute and the time within which the action must be commenced is determined by the date on which the attachment is made.
6. There is no statutory provision for the issuance of an execution on a judgment in an action on the statute for a mechanics' lien and the plaintiff to avail himself thereof must cause a certified copy of the record to be properly recorded so that the plaintiff may obtain possession and foreclose the defendant's equity of redemption therein, P. L. 2686, Sec. 3 of No. 55 of the Acts of 1935.
7. The defendant whose equity of redemption is foreclosed by proceedings on a mechanic's lien must be the person who owns the property sought to be charged, P. L. 2687, 2689.
8. An action for mechanic's lien brought by a person not contracting directly with the owner of property is an action quasi in rem resulting in a judgment affecting only the liability of the particular property and only the particular parties to the proceeding, P. L. 2687.
9. The form of an action may be the same regardless of whether it seeks a judgment in personam or in rem.
10. Contractors with the owner of property against whom their subcontractors seek to enforce a mechanic's lien are not necessary or indispensable parties to the action and neither their liability to the claimant nor their rights as against the property owner are fixed thereby, P. L. 2687, No. 55 of the Acts of 1935.
MECHANICS' LIEN under P. L. 2687. Plaintiff seeks mechanic's lien on defendant's property by virtue of work on building erected by third party pursuant to its contract with defendant. Defendant demurred. Demurrer overruled by Addison County Court, June Term, 1941, Adams J., presiding. Cause passed to Supreme Court before final judgment in accordance with P. L. 2072. The opinion states the case.
Judgment affirmed and cause remanded.
John T. Conley for defendant.
Charles O. Adams for plaintiff.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is an action brought under P. L. 2687, as amended, for the purpose of perfecting a mechanic's lien, so-called, upon a building and lot of land belonging to the defendant for materials furnished and labor performed in the construction of said building. The defendant demurred to the declaration, the demurrer was overruled, exceptions allowed, and the cause passed to this Court, in accordance with the provision of P. L. 2072, before final judgment.
From the allegations of the declaration, admitted by the demurrer, it appears that the building in question was erected by Burdo and Boyd, a partnership of which the members were nonresidents of Vermont, pursuant to a contract made by the defendant herein with said Burdo and Boyd; that labor and materials to the value of more than fifteen dollars for which the plaintiff makes claim were ordered by Burdo and Boyd and furnished to them by the plaintiff, and that such labor and materials were used by Burdo and Boyd in constructing the building owned by the defendant upon which a lien is claimed. It further appears that the notice required by P. L. 2685 that a lien would be claimed had been duly given to the defendant, and that a written memorandum signed by the plaintiff asserting his claim had been filed in the town clerk's office as required by P. L. 2686.
Although mechanics' liens were clearly defined and regulated in the civil law, they were neither recognized at common law nor allowed in equity. Therefore, in this country the right to acquire and enforce such liens is a creature of and dependent on statute. 36 Am. Jur. 19; Baldwin, Rec. v. Spear Bros. et al., 79 Vt. 43, 50, 64 A. 235. The statutes of no two states are alike. Jones on Liens, Vol. 2, p. 179, Sec. 1186. Such is the diversity in the various statutes governing the perfecting and enforcing of such liens that decisions in one jurisdiction are usually of little or no value as precedents in another jurisdiction. Furthermore the right to a lien in favor of a person performing labor or furnishing materials by virtue of a contract or agreement with an agent, contractor or subcontractor of the owner of the property to be affected was not given by our statute until the same was amended by No. 37 of the Acts of 1896. But neither by that act nor by subsequent legislation has the procedure to be followed in such a case been differentiated from that to be followed when the lien claimant has contracted directly with the owner of the property. For that reason our earlier decisions are not always applicable to controversies arising, as does this one, under the amendment to our law above referred to.
The grounds of the demurrer are, in brief, that this proceeding is an action in contract and no contract between the parties is alleged; that the mechanics' lien law does not give a right of action under P. L. 2687 as amended against any person with whom the lien claimant has not contracted; that Burdo and Boyd, the contractors with whom the plaintiff contracted, are necessary and indispensable parties to an action under the mechanics' lien law and that such contractors have not been made parties to this action or notified of its pendency; and that the plaintiff seeks a personal judgment against the defendant and is not entitled thereto upon the facts set forth in the declaration.
P. L 2687, as amended, so far as here material provides that "Within three months from the time of filing such memorandum, if such payment is due at the time of such filing, * * * said person (the lien claimant) may commence his action for the same, and cause such real estate or other property to be attached thereon; and, if he obtains judgment in the action, the record of such judgment shall contain a brief statement of the contract upon which the same is founded." Apparently the demurrer does not question but that the proceeding contemplated by this section is an action at law. That such is the intention of the statute is indicated by the fact that a judgment may be obtained as a result thereof and that an attachment of property is to be made as an incident to the proceeding. In mechanics' lien cases which have come to this Court on other questions the proceeding under this section or similar prior sections has always been, so far as appears, an action at law, and has not been challenged for that reason. See Hinckley & Egery Iron Co. v. James et al., 51 Vt. 240; Piper v. Hoyt, 61 Vt. 539, 17 A. 798; Baldwin, Rec. v. Spear Bros. et al., 79 Vt. 43, 49, 64 A. 235. It is true that plaintiff's writ terms the proceeding an action in contract, but the declaration states that it is brought pursuant to P. L. 2687 and it contains all the averments necessary to constitute an action thereunder. It is to be held to be what in fact it is--an action thereunder. It is to be held to be what in fact it is--an action on that statu...
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