Fidelity & Casualty Co. v. D. N. Morrison Construction Co.

The opinion of Mr. Justice STRUM is very strong and persuasive, but I am inclined to think that the bond, when properly executed, takes the place of the land, and that a court of equity can go right ahead, and adjudicate the sufficiency and validity of the bond, and if it be found valid, can decree a recovery against the obligors and sureties for the full amount found by the chancellor to be due and recoverable "on said lien." The statute (Sec. 5396, Comp. Gen. Laws) says that the lienee may release his property from the lien claimed by filing with the clerk a bond payable to the person claiming the lien "conditioned for the payment of any judgment which may be recovered on said lien." The statutory system regarding this class of liens, of which this section forms a part, provides that the lien may be enforced in equity. When a party with his sureties come in and release the land from the lien by filing such a bond with the clerk of the court, they in effect waive their right to object to the enforcement of the lien against the obligors in any of the methods provided by the statutory system, of which an equity proceeding is one.

In this case, the surety on the bond denies the validity of the bond, and in effect says that the lien on the land has not been displaced, yet challenges the right of the court to determine whether it has jurisdiction of the land, because, it alleges, the court has no right to even inquire into the question whether such a bond has been executed as the statute provides for. This anomalous situation *Page 326 shows that the Legislature could not have contemplated that a provision made for the convenience of the lienee, by which he could put a bond in the place of the property, should be used to deprive the court of jurisdiction and thus embarrass or delay the proceedings for the enforcement of the lien. The law shows the lienee an abundance of consideration when it allows him to put up a bond in the place of the land, and neither he nor his sureties should be allowed to use it as a means of delay.

Necessarily, the court of equity where its jurisdiction has been properly invoked, must have the power to determine whether a valid bond has been executed, in order to determine whether the lien, which it has jurisdiction to enforce, exists against the property.

Can the surety deny the existence of the bond contemplated by the statute, thus saying the lien still exists on the property, and at the same time deny the power of the court to determine the question and proceed to enforce the lien against the property?

As was said in Morton v. Tucker (N.Y.), 40 N.E. R. 3:

"The sureties in the bond intended, and must be understood as undertaking, to pay the amount which it should be adjudged was due and owing to the plaintiffs, and which was chargeable against the property by virtue of their notice of lien. In other words, the condition was for the payment of any judgment which might have been rendered against the property had not the bond been given. The bond, as we have seen, is given to discharge the lien. It is one of the procedings provided for by the statute, and it was evidently intended that the bond should take the place of the property, and become the subject of the lien, in the same form and manner as is provided for in *Page 327 the case of the payment of money into court, or the deposit of securities under an order of the court after action brought. Ward v. Kilpatrick, 85 N.Y. 413-418."