Cox v. Broderick

By the Court.

Woodruff, J.

The opinion of this court has been expressed before the act of 1855, (Sess. Laws of 1855, ch. 404, § 1, p. 760,) that the proceeding to foreclose a mechanic’s lien is a proceeding m rem, and that a judgment against the owner personally, in favor of a sub-contractor or employee of the contractor, is not proper.

The act of 1855 is in affirmance of the construction we had given to the lien law theretofore. (See Cronkright v. Thomson, 1 E. D. Smith, 662.)

By the first section of the above mentioned act it is explicitly and peremptorily directed, that the judgment shall direct a sale of the interest of the owner in the premises affected by the lien.

Upon this ground, if there be no other, the present judgment must be reversed.

*723It is not necessary to discuss the other grounds of appeal; hut I am clearly of opinion that many of them are equally fatal to the present judgment.

1. Lee, the alleged contractor, was performing the work of completing the buildings for himself, and not for the defendants. According to Lee’s statement, the defendants did not employ him to do the work. Lee was in every just sense the owner of the buildings, and the defendants held the legal title temporarily as security for them contribution towards the erection.

2. It does not appear (even if the defendants are to be deemed owners as between them and the plaintiff) that at the time the notice of lien was filed any thing was due from the defendants to Lee, or that any sum became due after-wards.

3. We have heretofore repeatedly held, that a sale of the premises to a Iona fide purchaser before the notice by which a lien is sought to be created is filed with the county clerk, will operate to prevent the acquisition of a lien. The statute only gives the right to acquire a lien upon the right, title and interest of the contracting owner existing at the time such notice is filed, so that if he then have no interest, no lien on the premises is acquired. This would not, in the present case, prevent the lien (if. any) from attaching to the houses remaining unsold, but it would be confined to those houses.

There is no conflict of evidence in the case, and I perceive no ground upon which the judgment can be sustained.

The judgment must, therefore, be reversed.

Judgment reversed.