Manchester v. Popkin

• Citation: 237 Mass. 434
• Parties: GEORGE R. MANCHESTER v. ISRAEL POPKIN.
• Decision Date: 28 February 1921
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 434

GEORGE R. MANCHESTER v. ISRAEL POPKIN.

Supreme Judicial Court of Massachusetts, Bristol.

February 28, 1921

November 22, 1920.

Present: RUGG, C.

J., DE COURCY CROSBY, CARROLL, & JENNEY, JJ.

Mechanic's Lien. Statute, Construction, Repeal. Constitutional Law. One who, under an oral contract with the owner of certain land made in

April, 1915 furnished labor and materials in the construction and repair of houses on the land from April 29, 1915, to January 31 1916, and filed his statement of lien in the registry of deeds on February 24,

1916, was entitled to maintain a petition under R.L.c. 197, for the enforcement of the lien.

Section 13 of St 1915, c. 292, repealing certain sections of R.L.c. 197, must be construed as leaving that statute in effect as relating to a mechanic's lien which arose by reason of an oral contract made in April,

1915, for the furnishing of labor and material in the construction and repair of certain houses, where the labor and materials were furnished, partly before and partly after January 1, 1916, when St. 1915, c. 292, went into effect.

A statute which would be unconstitutional as applied to a certain class of cases and is constitutional as applied to another class, may be held to have been intended to apply only to the class as to which it is constitutional, if that seems in harmony with the general purpose of the

Legislature.

PETITION under R.L.c. 197, for enforcement of a mechanic's lien.

The action was begun by a bill in equity filed on March 20, 1916. A demurrer to the bill was sustained on February 14, 1919, and a decree was ordered that the bill be dismissed unless the plaintiff within ten days moved "to amend his bill in equity into a petition on the law side of the court to enforce said lien." The motion to amend was filed and allowed on February 23, 1919.

In the Superior Court, the petition was referred to an auditor and, upon the filing of his report, was heard by Cox, J., without a jury. Material facts are described in the opinion. The judge found for the respondent, but, being in doubt as to whether the petitioner had any rights under St. 1917, c. 213, he reported the case to this court for determination, judgment to be entered for the respondents with costs if his ruling was right; otherwise, the petitioner's lien to be established for the sum of $1,365.87 and a sale to be ordered of the premises described in the petition to enforce the lien.

St. 1917, c.

213, approved on May 2, 1917, reads as follows:

"Section 1. Any person who has performed labor in, or has furnished labor or materials actually used in the erection, alteration, repair or removal of a building or structure upon land, by virtue of an agreement made prior to January first, nineteen hundred and sixteen, may, subject to the intervening rights of third parties, enforce a mechanic's lien therefor in accordance with the provisions of chapter one hundred and ninety-seven of the Revised Laws, and acts in amendment thereof, in the same manner as if chapter two hundred and ninety-two of the General Acts of the year nineteen hundred and fifteen had not been enacted. All the provisions of said chapter one hundred and ninety-seven, and of acts in amendment thereof, are hereby enacted so far as is necessary for this purpose.

"Section 2. This act shall take effect upon its passage." The case was submitted on briefs.

E. Higginson & S.

W. Ashton, for the petitioner.

F. A. Pease, for the respondent.

RUGG, C.J. This is a petition to enforce a mechanic's lien. The petitioner under an oral contract, made with the respondent on April 9 1915, 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 on March 20, 1916.

No question has been raised as to the allowance of that amendment. See Merrill v. Beckwith, 168 Mass. 72; Day v. Mills, 213 Mass. 585; Kerr v. Whitney, 224 Mass. 120 . 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, Sections 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. Ransom, 147 Mass. 240 .

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.

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. Donahy v. Clapp, 12 Cush. 440. Clifton v. Foster, 103 Mass. 233. Collins v. Patch, 156 Mass. 317 . Savoy v. Dudley, 168 Mass. 538 . Wiley v. Connelly, 179 Mass. 360 . 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, where numerous cases are collected and reviewed. Hendrickson v. Apperson, 245 U.S. 105, 113. "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. Devine's Case, 236 Mass. 588 . Gilpatrick v. Cotting, 214 Mass. 426. 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. Waters v. Dixie Lumber & Manuf. Co. 106 Ga. 592. Weaver v. Sells, 10 Kans. 609. Leak v. Cook, 52 Miss. 799. Warren v. Woodard, 70 N.C. 382. Craig v. Herzman, 9 No. Dak. 140. Handel v. Elliott, 60 Texas, 145. Garneau v. Port Blakely Mill Co. 8 Wash. 467. H. W. Wright Lumber Co. v. Hixon, 105 Wis. 153. Goodbub v. Hornung, 127 Ind. 181, 192. 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 Maine, 345, 351. Wilson v. Simon, 91 Md. 1, 9. Best v. Baumgardner, 122 Penn. St. 17. 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.

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. of Lowell, 233 Mass. 314 . Among 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, Sections 1-7, 9-14, 25-31 are repealed, Section 13. The petitioner's claim for lien rests upon Sections 1, 2 and 3 of R.L.c. 197. It is manifest that if...