Monk v. Exposition Deepwater Pier Corp.

• Decision Date: 09 June 1910
• Citation: 68 S.E. 280,111 Va. 121
• Parties: MONK et al. v. EXPOSITION DEEPWATER PIER CORPORATION et al.
• Court: Virginia Supreme Court

68 S.E. 280

111 Va. 121

MONK et al.

v.EXPOSITION DEEPWATER PIER CORPORATION et al.

Supreme Court of Appeals of Virginia.

June 9, 1910.

1. Mechanics' Liens (§ 263^*)—Enforcement —Parties.

Though proper parties, in the absence of statute requiring it, subsequent incumbrancers are not necessary parties in a suit to enforce a mechanic's lien.

[Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. § 476; Dec. Dig. § 203.*]

2. Mechanics' Liens (§ 235*)—Enforcement —Limitations—Bringing in Subsequent Incumbrancers.

A suit to enforce a mechanic's lien, under Code 1904, §§ 2481, 2484. requiring a suit to be brought within six months, and declaring that the liens may be enforced in equity, and when a suit is brought all persons entitled to any lien may file petitions for the enforcement of their respective interests, etc., must be conducted as other suits in equity to subject property to the payment of liens; and where a suit to enforce a lien is brought against the debtor within the time fixed, the failure to implead within the time a subsequent incumbrancer, within section 24S3, does not defeat the lien as against the incumbrancer.

[Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. § 418; Dec. Dig. § 235.*]

3. Mechanics' Liens (§ 264*)—Enforcement —Parties—Determination of Entire Controversy.

The lien claimant, by making the subsequent incumbrancer a aarty, enables the court to determine the entire controversy.

[Ed. Note.—For other cases, see Mechanics' Liens, Cent. Dig. § 482; Dec. Dig. § 264.*]

4. Liens (§ 22*)—Enforcement—Actions.

A lien creditor may sue on behalf of himself and other lien creditors to subject the property to the payment of the liens, and such other creditors may come into the suit by petition or under a decree for account, and on the return of the account the court may sell the property and distribute the proceeds among those entitled thereto.

[Ed. Note.—For other cases, see Liens, Cent. Dig. § 32; Dec. Dig. § 22, *]

5. Limitation of Actions (§ 172*)—Party Entitled to Plead Limitations.

Generally one creditor may set up limitations to defeat the demand of a co-creditor; but, to sustain the plea, it must be shown that the co-creditor's debt is barred as between himself and the debtor.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 657; Dec. Dig. § 172.*]

Appeal from Circuit Court, Norfolk County.

Suit by John Monk and another against the Exposition Deepwater Pier Corporation and others. From a decree of dismissal, plaintiffs appeal. Reversed and remanded..

Jeffries, Wolcott, Wolcott & Lankford, for appellants.

W. L. Williams, for appellees.

WHITTLE, J. This is a suit in 'equity by the appellants, who were general contractors, originally against the appellees, the Exposition Deepwater Pier Corporation and the stockholders, under Code Va. 1904, § 2484, to subject their property, known as "the Deep-water Pier, " to a mechanic's lien thereon amounting to $5,9i3.94.

This suit was admittedly brought within six mouths from the time when the whole amount covered by the lien became payable, as prescribed by section 2481.

The second lien on the property in question is a deed of trust executed by the owners to W. L. Williams, trustee, to secure $40,000 in bonds issued by the corporation. After the expiration of the six months, the plaintiffs in the original bill filed an amended and supplemental bill, making the trustee and holders of the bonds parties.

In the decree appealed from the circuit court dismissed both the original and amended and supplemental bills as to the trustee and holders of the bonds, because the suit against them was not brought within the six months. In other words, the holding amounts to this: That, though a suit to enforce a mechanic's lien is brought within due time against the debtor upon whose property the lien rests, the failure to implead subsequent lienors within six months defeats the lien so far as such incumbrancers are concerned.

This is plainly an erroneous construction of the mechanic's lien act. There is no statutory requirement that subsequent incumbrancers shall be made parties, and, though they are proper parties, they are not necessary parties to such suit.

Section 2481 prescribes the six months' limitation, and section 2484 declares that such liens may be enforced in a court of equity, and that when a suit is brought for that purpose all parties entitled to any such lien against the property bound thereby may file petitions in the main case for the enforcement of their respective liens, to have the same effect as if an independent suit were brought by each claimant, and the only priority among them is in favor of the subcontractor over the general contractor. The statute prescribes no form of procedure, and such suits are to be conducted as other suits in equity to subject property to payment of liens. It is settled practice, in the case of lien creditors of a living person or a corporation, that a suit will lie by one creditor on behalf of himself and other lien creditors; and such other creditors may come into the suit by petition, or under a decree for account, and prove their liens before the master, to whom an account of liens is referred. On the return of the account, the court sells the property of the debtor and distributes the proceeds among those entitled, as their rights appear. 1 Bar. Chy. Pr. (1st Ed.) 270.

Such suit is in no sense a suit against other lien creditors of the common debtor, even when convened as parties defendant. No relief is sought against them; and, where such course is adopted, they are thus impleaded as matter of convenience to enable the court to audit liens, and transfer the charge from the property to the purchase money. In this way the court offers an unincumbered title to intending purchasers, and, in the interest of all concerned, the land is sold to best advantage.

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