Manchester Federal Sav. and Loan Ass'n v. Letendre

• Decision Date: 28 October 1960
• Citation: 103 N.H. 64,164 A.2d 568
• Parties: MANCHESTER FEDERAL SAVINGS & LOAN ASSOCIATION v. Urbain LETENDRE et al.
• Court: New Hampshire Supreme Court

Page 568

164 A.2d 568

103 N.H. 64

MANCHESTER FEDERAL SAVINGS & LOAN ASSOCIATION v. Urbain LETENDRE et al.

Supreme Court of New Hampshire.

Argued Oct. 4, 1960.

Decided Oct. 28, 1960.

Booth, Wadleigh, Langdell, Starr & Peters and Charles J. Dunn, Manchester, for plaintiff.

Wiggin, Nourie, Sundeen, Nassikas & Pingree, Manchester (John W. Nassikas, Manchester, orally), for defendant Urbain Letendre.

Normand R. Pelletier, Nashua, for defendants Donat Corriveau and Hartford Accident and Indemnity Company.

Thomas F. O'Brien, pro se, furnished no brief.

BLANDIN, Justice.

The fundamental question before us is whether the writ of the defendant Urbain Letendre against the Gilbert Corporation was in proper form so that he obtained a mechanic's lien under RSA ch. 447 against the real estate of the Bouthiettes, on whose property he had done work for the corporation. Section 10 of RSA ch. 447, which controls the issue here, reads as follows: 'Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues, the writ and return thereon distinctly expressing that purpose.' It is in the agreed statement of facts that the sheriff, on January 8, 1957, over two years prior to the deed to the Lavignes and their mortgage to the plaintiff, left an attested copy of a writ and of his return of the special lien attachment thereon at the office of the Register of Deeds of Hillsborough County as required by RSA 511:3, which reads: 'Real estate may be attached on a writ of mesne process by the officer leaving an attested copy thereof, and of his return of the attachment thereon at the office * * * of the register of deeds of the county in which the real estate is situate.' (Emphasis supplied).

The command to the sheriff to make the lien attachment was stapled to the second page of the specifications and was in fact an extension of this page. It is undisputed that it contained a clear and unequivocal order to the sheriff distinctly expressing a purpose to secure a mechanic's lien as directed by RSA 447:10. The attack on the validity of this proceeding to procure a lien centers on the fact that the command to the sheriff was inserted in the specification and therefore, the opposing parties argue, was not in the writ within the meaning of section 10, supra. Neither in section 10 nor elsewhere in the statute do we find any express direction as to the place where the command to attach and the statement of the purpose thereof should be inserted. Admittedly, to comply with the statute, the order to the sheriff must be distinctly expressed. Wurm v. John J. Reilly Inc., 102 N.H. 558, 163 A.2d 13; Mathers v. Connolly, 95 N.H. 107, 58 A.2d 510. Also, it is true that in the case of a statutory lien, the specified requisites must be strictly observed. Poirier v. East Coast Realty Co., 84 N.H. 461, 152 A. 612.

RSA ch. 509, which contains forms for writs, has nothing specific to cover the present situation. Section 5 provides: 'In cases where no form of process is prescribed the process shall be made comparable to the forms prescribed, so far as the nature of the case will admit.'

An examination of the instrument involved here shows that as a practical matter it would have been necessary to attach the lien directive to the writ on a separate sheet in any event, since there was insufficient room to insert it in the space at the top of the writ reserved for the name of the principal defendant and the order to attach his goods. It should be noted that the action against the principal defendant, Gilbert Corporation is in personam. It is not against the Bouthiettes in personam, but is a proceeding in rem against their real estate, and the command to attach it is, as provided by RSA 447:10, in addition to the directive to attach the goods of the principal defendant.

As supporting their view that there was no command in the writ proper to make a special attachment as required by section 10, supra, the opposing parties rely upon the statement in the case of Bryant v. Warren, 51 N.H. 213, that: 'The declaration is no part of the writ, but merely an appendage to it, not containing directions to the officer but information for the court and the opposite party. The officer's power is derived from the precept alone.' An examination of this case shows that there was no command to attach anything anywhere in the writ or declaration, or especially to secure a lien, and no return by the sheriff that he had made such an attachment. In the case of Goudie v. American Moore Peg Co., 81 N.H. 88, 122 A. 349, cited for the same proposition, there was no command anywhere in the instrument to make a special attachment. Other authorities relied upon are likewise distinguishable from the present situation on their facts. The dicta in Bryant as to the distinction between a writ and declaration was not necessary to the holding in the case, and while in a technical sense we speak of a writ and a declaration, it cannot be said as a practical matter that the two are necessarily separate and distinct except as to content. A writ without a declaration is ineffective to fulfill its ultimate purpose of affording a party an opportunity to gain relief. Superior Court Rule 17. Obviously a declaration, unless a part of a writ, accomplishes nothing. Each is an integral and complementary portion of a whole, and to cause this whole to serve its intended purpose they must be considered together. In short, we believe the instrument here, including the writ...