Manchester v. Popkin

• Decision Date: 01 March 1921
• Citation: 130 N.E. 62,237 Mass. 434
• Parties: MANCHESTER v. POPKIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 434

130 N.E. 62

MANCHESTER

v.POPKIN et al.

Supreme Judicial Court of Massachusetts, Bristol.

March 1, 1921.

Report from Superior Court, Bristol County; Louis S. Cox, Judge.

Petition to enforce mechanic's lien by George R. Manchester against Israel Popkin and others, resulting in finding for respondent. On report to the Supreme Judicial Court. Petitioner's lien established, and sale to enforce it ordered.

E. Higginson and S. W. Ashton, both of Fall River, for petitioner.

Frank A. Pease, of Fall River, for defendants.

RUGG, C. J.

This is a petition to enforce a mechanic's lien. The petitioner under an oral contract, made on April 9, 1915, with the respondent, furnished labor and material in the erection of one house and the repair of another house on land of the respondent.The work was begun on April 29, 1915, the last work was done on January 31, 1916, a statement of lien was filed in the registry of deeds on February 24, 1916, and a suit in equity to enforce the lien, later amended into the present petition, was filed March 20, 1916.

No question has been raised as to the allowance of that amendment. See Merrill v. Beckwith, 168 Mass. 72, 46 N. E. 400;Day v. Mills, 213 Mass. 585, 100 N. E. 1113;Kerr v. Whitney, 224 Mass. 120, 112 N. E. 609. A petition to enforce a lien under R. L. c. 197, is on the law side of the court and not in equity. Such petitions may be brought in police, district or municipal courts, in which equity suits cannot be brought. See G. L. c. 231, §§ 31, 141. The procedure is that prevailing at law. Corbett v. Greenlaw, 117 Mass. 167;Hubon v. Bousley, 123 Mass. 368:Nantasket Beach Railroad v. Bansom, 147 Mass. 240, 17 N. E. 640.

In substance and effect the proceeding as it now stands is that the petitioner, having commenced work in performance of an oral contract for furnishing labor and materials in the construction of a building before the enactment of St. 1915, c. 292, and having completed that contract after that act went into operation, seeks to enforce his lien for labor and material furnished both before and after January 1, 1916, in accordance with the provisions of R. L. c. 197, both as to substantive rights and forms of procedure. Whether that can be done is a new question.

[3] At the time the petitioner made his contract and began to perform it, he was entitled under R. L. c. 197, to a lien for labor and materials to be enforced as therein set forth. A lien of that nature--

‘Is not created upon the filing of a certificate and a petition, but is created as soon as labor or material, or both, is performed or furnished on real estate. The lien is an interest in the property, stands as security for the payment of the debt, is a vested right and is not an additional and extraordinary remedy which the Legislature may discontinue at pleasure.’ See v. Kolodny, 227 Mass. 446, 448, 449, 116 N. E. 888, 889;Donahy v. Clapp. 12 Cush. 440;Clifton v. Foster, 103 Mass. 233, 4 Am. Rep. 539;Collins v. Patch, 156 Mass. 317, 31 N. E. 295;Savoy v. Dudley, 168 Mass. 538, 47 N.E. 424;Wiley v. Connelly, 179 Mass. 360, 60 N. E. 784.

Thus it has been settled by a long line of our decisions that the lien is something more than a mere remedy or form of procedure to which resort may be had for the collection of a debt. It is a vested property right. It is entitled to the protection afforded by the Constitution to such rights. It is not an amplification but merely an application of this established principle to say that the lien which thus sprang into existence under the terms of the statute was coextensive in time and in every other valid particular with the contract.

‘The law as to the enforcement and effect of a contract at the time it is made cannot be changed to the detriment of either party. Such law enters into the terms of the contract and becomes a part of its obligation.’ Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, at page 7, 107 N. E. 426, at page 429 (1 Ann. Cas. 1917A, 145), where numerous cases are collected and reviewed; Hendrickson v. Apperson, 245 U. S. 105, 113, 38 Sup. Ct. 44, 62 L. Ed. 178.

‘In modes of proceeding and forms to enforce the contract the Legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right.’ Penniman's Case, 103 U. S. 714, 720 (26 L. Ed. 602);Devine's Case. 236 Mass. 588,129 N. E. 414;Gilpatrick v. Cotting, 214 Mass. 426, 101 N. E. 993.

Numerous cases have arisen in other states, where it has been held that lien laws cannot be subsequently changed so as to affect rights of parties theretofore acquired under contracts. Kendall v. Fader, 199 Ill. 294, 301, 65 N. E. 318;Waters v. Dixie Lumber & Manuf. Co., 106 Ga. 592, 32 S. E. 636,71 Am. St. Rep. 281; Weaver v. Sells, 10 Kan. 609; Leak v. Cook, 52 Miss. 799;Warren v. Woodard, 70 N. C. 382;Craig v. Herzman, 9 N. D. 140, 81 N. W. 288;Handel v. Elliott, 60 Tex. 145;Garneau v. Port Blakely Mill Co., 8 Wash. 467, 36 Pac. 463;H. W. Wright Lumber Co. v. Hixon, 105 Wis. 153, 80 N. W. 1110, 1135;Godbub v. Hornung, 127 Ind. 181, 192, 26 N. E. 770. There are other decisions where the lien is held not to be a vested interest, but only a form of remedy, and hence subject to legislative control as affecting existing liens. Frost v. Ilsley, 54 Me. 345, 351: Wilson v. Simon, 91 Md. 1, 9,42 Atl. 1022,80 Am. St. Rep. 427;Best v. Baumgardner, 122 Pa. 17, 15 Atl. 691,1 L. R. A. 356. This apparent conflict with the general current of authority in the decisions just cited rests upon conceptions as to the nature of the lien or perhaps upon statutes creating the lien different from those which prevail in this commonwealth.

[4] The right of the petitioner to the lien having come into existence when he began the performance of his agreement, the lien law as it then stood in its essential features entered into the fabric of his contract and could not be changed to his harm. That right thus vested in him was to go forward and to perform his contract according to its terms within such time as was required and at its completion to enforce the lien guaranteed to him under the law at the moment his right first became vested. It was a single and indivisible lien which grew out of his one contract. It follows that the lien acquired by the petitioner by the performance of his contract, begun under R. L. c. 197, and completed on January 31, 1916, was a vested property right and became a part of his contract, so that it could not be taken away or vitiated by the Legislature.

A radical change was wrought in the lien law by St. 1915, c. 292, which went into operation according to its terms on January, 1, 1916. This new law was in no sense an amendment of the mechanic's lien law theretofore existing. It was essentially an entirely new act. Pratt & Forrest Co. v. Strand Realty Co., 233 Mass. 314, 123 N. E. 771. Amongst other matters, it there is provided that no lien can be enforced for materials unless it is in writing (sections 2 and 3), and that R. L. c. 197, §§ 1-7, 9-14, 25-31, are repealed (section 13). The petitioner's claim for lien rests upon sections 1, 2 and 3 of said R. L. c. 197. It is manifest that if said St. 1915, c. 292 is given effect according to the widest scope of its terms, it would wipe out a substantial part of the petitioner's rights since his contract was not in writing. It already has been decided as matter of construction that said St. 1915, c. 292, by its repealing section 13, applied only to future liens which should come into existence under the new act and did not ‘apply to cases where by force of R. L. c. 197, mechanics had acquired a vested right to a lien before January 1, 1916.’ Alnslee v. Boscketti, 230 Mass. 577, 580, 119 N. E. 959, 960;See v. Kolodny, 227 Mass. 446, 116 N. E. 888. Both those decisions related to liens acquired under R. L. c. 197, the work having been completed before January 1, 1916, the enforcement of which had been begun in court, in the latter case before January 1, 1916, and in the former case after that date, but in both cases in accordance with the proceedings provided in R. L. c. 197. It was held in each of those decisions as matter of construction of statutory law that that chapter still was in force for affording a remedy to the lienors notwithstanding the repealing provisions of St. 1915, c. 292, § 13. The underlying reason for both those declsions was that otherwise the petitioners would have had no remedy for the enforcement of their liens under the circumstances in each case. It was not thought rational to hold that St. 1915, c. 292...