Savoy v. Jones

• Decision Date: 25 January 1830
• Citation: 2 Rawle 343
• Parties: SAVOY and SALTER v. JONES.
• Court: Pennsylvania Supreme Court

2 Rawle 343

SAVOY and SALTER v. JONES.

Supreme Court of Pennsylvania.

January 25, 1830

IN ERROR.

A cestui que trust, tenant for life, under a post nuptial marriage settlement, erected a building during her coverture, against which a person who furnished the bricks filed a claim under the act of March 17th, 1806 " securing to mechanics and others, payment for their labour," & c. Upon this claim a Scire Facias was issued against A., and B., her husband, who was entitled to a contingent remainder for life under the settlement, and C., who, under the settlement, was trustee for A. and those in remainder and reversion. A., B., and C appeared to the Scire Facias, and pleaded to issue but before the trial, A. died, and B., her husband, became tenant for life under the settlement. Held, that notwithstanding B. became entitled in remainder upon the death of A., the lien, created upon the building by filing the claim, continued to bind against the remaindermen and reversioners, and was not confined in duration to the life interest of A., who erected the building.

The persons, or description of persons enumerated in the act of assembly of the 17th of March, 1806, " securing to mechanics and others, payment for their labour," & c. are not alone entitled to the remedies provided therein; but any person, without distinction, employed in furnishing materials for, or in erecting or constructing any house, or other building, is within the meaning of the act, and may file a claim, and thereby affect the house or building.

UPON a writ of error to the District Court for the city and county of Philadelphia, the case was this:--

A Scire Facias was issued against the defendants below, upon a claim filed in the office of the prothonotary of the District Court for the city and county of Philadelphia, on the 15th day of November, 1817, in these words:--" Robert W. Jones, of the city of Philadelphia, files this, his claim, for materials furnished, to wit: for bricks delivered by himself and servants at, and to be used in the construction of a certain three storied back building, adjoining and attached to, and immediately in the rear of a certain brick house, situate on the south side of Pine street, in the city aforesaid, between Sixth and Seventh streets from the Delaware river, numbered 174, in the tenure, at the time the said bricks were delivered, of Sarah Salter, and adjoining ground then, or lately, of John Gest and _________ M'Adams; which said bricks were furnished and delivered since the passing of the act of the general assembly of the commonwealth of Pennsylvania, entitled, ‘ an act, securing to mechanics and others, payment for their labour and materials, in erecting any house or other building, within the city or county of Philadelphia; ’ passed the 17th day of March, 1806, and within six months preceding the date of filing this claim, to wit: in the months of May and June, in the year 1817, and on the furnishing and delivering and carting of which, there remains due and unpaid to the said Robert W. Jones, the sum of three hundred and ninety-three dollars and ninety-six cents, lawful money of Pennsylvania, with interest. Wherefore, to secure payment of the said sum of money, the said Robert W. Jones, agreeably to the provisions of the act of assembly aforesaid, files this, his claim, in the office of the prothonotary of the District Court of the city and county of Philadelphia, and declares the said sum to be a lien on the said building.

" Robert W. Jones.

Philadelphia, Nov. 15th, 1827."

The writ of Scire Facias was issued against Samuel Salter, Sarah Salter, his wife, and Francis Savoy, trustee for Sarah Salter, Samuel Salter, and those in remainder and reversion; but Sarah Salter having died before the trial, which took place March 27th, 1827, her death was suggested by Jones, the plaintiff, and the issues joined between Savoy, Samuel Salter, and Jones, only were tried by the jury. The pleas to the Scire Facias, upon which the issues so tried were joined, were, payment, with leave to give the special matter in evidence, and non assumpsit.

The plaintiff, on the trial, read the claim filed, to the jury, to inform them of the subject matter in dispute between the parties; and then read in evidence a deed, dated August 29th, 1809, between Samuel Salter and Sarah Salter, of the one part, and Francis Savoy, of the other part, by which, (among other parcels of real estate,) " All that two story brick messuage or tenement, and lot or piece of ground, situate on the south side of Pine street, between Sixth and Seventh streets from Delaware, in the said city of Philadelphia, containing in front, or breadth, on the said Pine street, fifteen feet, and extending in length or depth, southward, one hundred feet; bounded on the north by the said Pine street, and on the east, partly by a three feet wide alley, extending southward from Pine street, thirty-six feet, and partly by ground of Mary Rojeay, on the south, by ground late of White Matlack, and on the west, by a two story brick house and lot of Mary Rojeay, subject to a rent charge of sixteen dollars; " (being the premises and lot mentioned in the said claim filed,) were conveyed to the said Savoy, " his heirs and assigns, for ever; but nevertheless, to and for the several uses, and upon the several trusts, & c:, declared of, and concerning the same; that is to say, to the use of the said Sarah Salter, and her assigns, for and during the term of her natural life, without impeachment of waste: And from and immediately after the determination of that estate, by forfeiture or otherwise, to the use of the said Francis Savoy and his heirs, during the life of the said Sarah Salter, in trust, to preserve the contingent uses, and other estates herein after limited, from being defeated or destroyed, and for that purpose, to make entries, or bring actions, as occasion shall require; but nevertheless, to permit and suffer the said Sarah Salter and her assigns, to receive and take the rents, issues, and profits thereof, to and for her own use, during her life; and from and after the decease of the said Sarah Salter, to the use of the said Samuel Salter, if he shall survive her, for and during the term of his natural life, without impeachment of waste: And from and immediately after the determination of that estate, by forfeiture or otherwise, to the use of the said Francis Savoy and his heirs, during the life of the said Samuel Salter, in trust, to preserve the contingent uses and estates, herein after limited, from being defeated or destroyed, and for that purpose, to make entries, and bring actions, as occasion shall require; but nevertheless, to permit and suffer the said Samuel Salter, his heirs and assigns to receive and take the rents, issues, and profits thereof, to and for his and their own use, during his life: And from and after the decease of the said Samuel Salter, to the use of his children, in fee, and in default of such children, to the use of Sarah Salter, her heirs and assigns, for ever." The said deed further recited, that the settlement contained in it, was made " only upon the condition of the said Sarah Salter, not recovering at any time hereafter any dower, or thirds, out of the real and personal estate of the said Samuel Salter. " And it was further understood and agreed, between the said parties to it, " that the receipts of the said Sarah Salter, are to be good and effectual in law, and the rents, issues, and profits of the said messuages, or tenements, are not to be subject to the debts, control, or engagements of the said Samuel Salter. " The plaintiff also read in evidence the deposition of John Powell, who said, " that he was by profession a bricklayer: That about nine years ago, he was employed by Sarah Salter, now deceased, (23d of December, 1826,) in the erection of a brick building of three stories, in the rear of house No. 174, on the south side of Pine street, between Sixth and Seventh streets from the Delaware. The bricks used in the building were sent by Mr. Jones; he was the man we used to send to, when we wanted. bricks, and he came to us half a dozen or a dozen times at the building, to inquire what kind of bricks, and what quantity we wanted. Mrs. Salter employed me in this work, and paid me. She was the contracting party. I made my contract with her. He, (Mr. Salter, ) however, was there towards the latter part of the time, and made the final payment on my bill. He has the receipt of witness for the last or final payment. Mrs. Salter had paid him previously, from time to time along, as this deponent wanted money. The deponent thinks the quantity of bricks received from Jones, at that building, was forty thousand, perhaps more. Mrs. Salter told me she got these bricks from Mr. Jones. The bricks were higher in price at that time, than at present; they were, a few years before this building, as high as ten dollars a thousand. I do not recollect exactly the price in 1817. Rather higher in the spring than at other seasons. This building was put up some time after April. Mr. Salter lived in the Pine street house all the time we were doing the work. The man who hauled the bricks was a witness before the arbitrators. The work, the brick work, was measured after it was put up, to ascertain the quantity. Mrs. Salter frequently said she had to pay Mr. Jones for these bricks."

Being cross-examined by the defendant's counsel, the witness said:-- " This house stands right back of the main building, but does not join it; twelve or fourteen feet between them; maybe twelve or fourteen feet, may be more. Consists of two buildings, with distinct chimneys between the two; three stories high; two separate entrances, or doors. I cannot say how long we had...