Hartford Builders' Finish Co., Inc. v. Anderson

• Decision Date: 27 July 1923
• Citation: 99 Conn. 343,122 A. 76
• Parties: HARTFORD BUILDERS' FINISH CO., INC., v. ANDERSON ET AL.
• Court: Connecticut Supreme Court

122 A. 76

99 Conn. 343

HARTFORD BUILDERS' FINISH CO., INC., v. ANDERSON ET AL.

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, Hartford County; Frank D. Haines, Judge.

Action by the Hartford Builders' Finish Company, Incorporated against J. Alfred Anderson, the Capitol City Lumber Company and others, to foreclose a mechanic's lien. From judgment apportioning pro rata among various lienors the amount subject to distribution, the second named defendant appeals. Reversed and remanded.

Stewart N. Dunning, of Hartford, for appellant Capitol City Lumber Co.

Birdsey E. Case, of Hartford, for appellees Ekstrom and others.

Thomas J. Conroy, of Hartford, for appellees Grant and others.

Terry J. Chapin, Milton Bacharach, and William H. Fogerty, all of Hartford, also appeared on the brief for other appellees.

KEELER, J.

From the finding of facts it appears that the plaintiff and all of the defendants (except Anderson and Larson) furnished materials and rendered services in the construction of a dwelling house for Anderson and Larson upon a lot of land in West Hartford owned by them, and the plaintiffs and all of the other defendants filed mechanics' liens against the real property, and that the commencement of each lien was the date of the beginning of rendering services or furnishing materials. Each of the lienors was an original contractor with the owners, and there were no other general contractors. The property was sold by judgment of the court for $5,150, and a net sum of $4,855.26 remained for distribution among the lienors, after payment of costs and expenses of sale. The aggregate amount due to all the lienors was $6,471.84. The court in its judgment ordered the sum remaining for distribution to be paid and apportioned pro rata among the lienors, and overruled the claim of the appellant that they should be paid in order of precedence and priority and of their incumbrances according to dates of commencement of the various liens, from which judgment the appellant appealed, assigning the application of the rule of division adopted by the court as error.

Very little in the way of uniform doctrine can be derived from the construction which has been placed upon statutes of the different states relating to mechanics' liens, by reason of the diversity of the terms employed. Some of them settle the question involved in the instant case by express provisions as to priority, others have more general provisions. These latter may be said to fall into two classes; in one, all liens attach from the commencement of the building, in the other, liens attach from the commencement of work or of furnishing materials. As to the former class it has been generally held that lienors prorate their claims and that among them there is no priority. In considering statutes falling in the second class, the construction has ordinarily been that priority exists, and that as among themselves lienors are preferred in the order of time at which they severally commenced to render services or furnish materials. The Connecticut statute is included in the second class above defined. The diligence of counsel and investigation by the court has failed to find more than two cases, Choteau v. Thompson, 2 Ohio.St. 114, and Crowell v. Gilmore, 18 Cal. 370, in which under a statute falling in the second class it has been held that the principle of a pro rata division applies, and not that of priority. It is also doubtful whether the California statute comes clearly within the second class.

In Kendall v. Pickard, 67 N.H. 470, 32 A. 763, the court construing the statute of New Hampshire, P. S. c. 141, § 16, which provides that a contractor's " lien * * * shall continue for ninety days after the services are performed, or the materials or supplies are furnished, unless payment therefor is previously made, and shall take precedence of all prior [sic] claims except liens on account of taxes," says:

" It is difficult to express in fewer or more explicit words the proposition that liens of the kind in question have precedence in order of their accrual, and, if they accrue simultaneously, in the order of the attachments made to secure them."

The statute of New York relating to mechanics' liens (N. Y Consol. Laws, vol. 3, c. 33, art. 2, § 3, p. 3140) provided the contractors shall have a lien on the property improved or to be improved and upon the improvement from the time of filing a notice of such lien. The act has been construed to give priority to lienors according to the dates of filing their respective liens. Hall v. Thomas (Sup.) 111 N.Y.Supp. 979; Western Sash, etc., Co. v. Gaul Const. Co. (Co. Ct.) 126 N.Y.Supp. 1110; Vogel & Binder Co. v. Montgomery, 133 A.D. 836, 118 N.Y.Supp. 10; Kelley Lumber Co. v. Otselic, etc., Co., 136 A.D. 146, 120 N.Y.Supp. 415.

Passing to a review of our own statutes concerning mechanics' liens, and decisions applicable to the question under consideration, we find that the first statute upon the subject was enacted in 1836, P. A. 1836-37, c. 76, and section 1 subjects a building and the land whereon it is placed, in any incorporated city, to a lien in favor of a contractor whose claim for services performed or materials furnished in the erection or repair of such building shall exceed $200, and provides that the sum due " shall be a lien on such land and building, and shall take precedence of any other lien or incumbrance, which originated subsequent to the commencement of such building or repairs, and such premises shall be liable to be foreclosed by such contractor or contractors, in the same manner as if held by mortgage."

In 1838 the statute was amended (P. A. 1838, c. 41) to include buildings located anywhere in the state, and in 1839 (P. A. 1839, c. 29) a right of lien was extended to subcontractors. In 1855 (P. A. 1855, c. 76) there was added to section 1 of the law of 1836 above cited the words: " Subject to apportionment as provided in the fifth section of this act." This fifth section is substantially what we now have in Gen. Stat. 1918, § 5220, relating to liens of subcontractors.

Various changes were made from time to time in the provision of the lien law, but none affecting the question now under consideration until the revision of 1875 (Gen. St. 1875, tit. 18, c. 7, § 9), when the words of section 1 of the act of 1836 were changed by striking out the word " lien," so that the section as revised reads " and shall take precedence of any other incumbrance, originating after the commencement," etc. No substantial change in this section was made in subsequent revisions, and it now appears in Gen. Stat. 1918 in section 5217. Both of these sections are printed in the margin.^[1]

As we have stated appellant claims precedence and priority for the various liens according to the time in which each accrued. The appellees claim an apportionment of the available fund pro rata in accordance with the amounts of their several claims, and in support of this contention advance the following reasons:

First, that the rule of equity is equality, and that in default of an express provision in unmistakable terms giving priority, this rule should have effect in construing the statute considered. This is the ground of decision adopted by the court as appears from its memorandum wherein it is said:

" This statute says nothing as to priorities or prorating, but we think the spirit and intent of the statute, the mischief which it was designed to remedy, and the application of equitable principles all require that the statute be construed as giving an interest to each lienor in proportion to his claims."

This ground is also adopted in the two cases favorable to the contention of the appellees before referred to. Choteau v. Thompson et al., and Crowell v. Gilmore.

Second, that the precedence spoken of in section 5217 means priority, not of one lien over another, but of the various liens in the aggregate over other incumbrances.

Third, that the removal of the word " lien" from the section in the revision of 1875, now Gen. Stat. § 5217, served to remove any possibility of any construction giving priority as between lienors.

Fourth, that the phrase contained in section 5217 " subject to apportionment as provided in section 5220" relates to all liens, and that section 5220 is referred to as providing a method of apportionment.

The three grounds last named were not passed upon in the memorandum of the trial court, and do not appear to have been taken by it as reasons of decision.

Examining prior decisions of this court, we find in the opinion in Chapin v. Persse & Brooks Paper Works...