Lays v. Hurley

• Decision Date: 22 October 1913
• Citation: 103 N.E. 52,215 Mass. 582
• Parties: LAYS et al. v. HURLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 582

103 N.E. 52

LAYS et al. v. HURLEY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

October 22, 1913

Oct 22, 1913.

COUNSEL

Chamberlain &

Fletcher, of Brockton, for petitioners.

H. F Parker, of Brockton, for respondent Scott.

OPINION

DE COURCY, J.

The petitioners, under a written contract with the respondent Hurley, dated April 12, 1910, constructed a building on his premises, and now seek to enforce a mechanic's lien on the property for the balance due to them. It is admitted that there was evidence at the trial to establish all the allegations in the petition to enforce the lien, and all the jury's findings on the issues of fact submitted to them provided the statement of lien filed in the registry of deeds was sufficient. The respondents contend, however, that the statement did not comply with the requirements of the lien statute for the reason that the individual name of Samuel T. Lays, one of the lienors, did not appear therein, and for the further reason that it was not signed or sworn to in his behalf.

The question at issue involves the construction of R. L. c. 197,§ 6, which provides that the lien shall be dissolved unless 'the person claiming it' within 30 days after the labor is performed or materials furnished files in the registry of deeds 'a statement, signed and sworn to by him or a person in his behalf,' containing a true account of the amount due him, a description of the property sufficiently accurate for identification, and the name of the owner, if known. In construing this provision it is to be borne in mind that the filing of the certificate does not create the lien, but merely keeps it alive so that proceedings may be taken to enforce it. The lien comes into existence when the petitioners perform the labor and furnish the materials. Wiley v. Coonelly, 179 Mass. 360, 60 N.E. 784; Clifton v. Foster, 103 Mass. 233, 235, 4 Am. Rep. 539. And while the petitioners must bring themselves strictly within the terms of section 1 of the statute, which provides for the creation of a lien incumbrance on real property, yet, as was said by Lord, J., in Trask v. Searle, 121 Mass. 229: 'When a lien attaches, the provisions of law upon the subject being remedial, a liberal construction will be put upon the statute for the purpose of accomplishing its objects.' This liberality is illustrated by the provisions of sections 6 and 7, which deal with inaccuracies in stating the contract price, or the amount and value of the labor furnished, and with mistakes in the landowner's name.

The statute specifically provides what particulars shall be set out in the statement, and does not, expressly at least, require that the individual names of the lien claimants be inserted. Nor does it seem important in determining the rights of the parties that the name of each partner should be stated, as any person interested easily could ascertain who comprised the firm of Lays Bros. We find no warrant in the language or in the spirit of the statute for the contention of the defendants that a failure to insert in the statement the individual names of both partners is fatal to the lien claimed. Getchell v. Moran, 124 Mass. 404; Brosnan v. Trulson, 164 Mass. 410, 41 N.E. 660.

The second and third grounds of objection are based on the requirement of the statute that the statement shall be signed and sworn to by the lien claimant or by a person in his behalf. The statement in question certified that the account was due to 'William Lays and copartners doing business as Lays Brothers,' and concluded as follows: 'I further certify that said Lays Brothers ceased to perform and furnish labor and furnish materials for said building on the tenth day of March, 1911, and that [sic] and they hereby claim a lien on said building, and upon the interest of the owner thereof in the lot of land upon which the same is situated, to secure payment of the debt due said Lays Brothers as aforesaid and of the costs which may arise in enforcing said lien.' It was signed, 'Lays Brothers, by William Lays,' and was sworn to by William Lays. The account recited: 'James...