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Mechanical jurisprudence.—No. 4
AMERICAN IdECHANICS ~ MAGAZINE.
213
aotiee~ trespass further on the patience of our readers; but shall conelude with recommending its perusal to all persons who take an interest in such investigations, as one of the ablest works with which we are acquainted.
~OR THE FRAnkLIN ffOU~NAL,
M E C H A N I C A L J U R I S P R U D E N C E . ~ N o . 4. I~Y P . A. B R O W N E ,
ESQ.
On Mechanics' Liens. T h e next point for eonsideration~ as relates to the suhject matter of ~he contract, is, S. The contract of exchange of labour or materials. I t sometimes happens that mechanics and material men, instead of conh'actlng, in the usual way, for money, stipulate with each other to exchange fiibour for labour, or materials fi)r materials, or labour for materials. ~Vhciher persons thus situated, have a right to file claims against the bu~ldings,-has been made a question. The judges of the district ceurt, M ' K e a n and I1~gersoll, were divided in otfinion , and the cause was removed to the supreme court, where it has been detemfined, flint the lien is extended to such contracts. S. C. Dee. 189.5. Hinchman v. l,ybrant. The time within which the contract .is to be executed. The materials may be furnished~ either before the commencement of the building, or while it is progressing; but if they are furnished afler the building is finished, no lien is created. I t is no uncommon thing to collect the materials for a building~ and prepare the sashes~ doors~ &c. before the building is commenced; and ;,vhen this is done in the regular course of business, there would be no equity in excluding them from a lien ; but every man is required, to exercise common care and prudence, in the management of his concerns; and cmmnon care and prudence are wanting~ where materials are furnished~ after a building is finished. Therefin'e, in the case of t[~e Ol~,mpic Theatre, the court admitted as lien% all materials furnished before the building commeneed~ and while it was progressing, but they refi~sed to admit any claims~ for materials furnished, efter the building was finished. The place over which the contract operates. The law of 1803 was confined to the city of Philadelphia, the distrier of Southwark, and the township of the Northern Liberties. The act of 1806 speaks of the city and county of Phlhtdelphia ; and by several subsequent acts, the benefit has been extended almost over the state. The second general question is, " U p o n what does the llen attach ?" The ~'ords of the act ar% " a l l and every dwelling house, or other
214
T I l E FRANKLIN JOUI1.NAL AND
buildillg;" which expressions, as we have before seen, includes every edifice whatever. W e shall now proceed to inquire, what things are included under the above expressions. These are: 1. The lot.w2. ~k'he appurtenances.--3. Fixtures. ] st. The lot.--Although the act of assembly speaks of the lien as attaching to the building only, yet the lot on which it stands, and as much as is required fl)r its necessary enjoyment, is also affected by the lien, and may be sold with the building. It is evident, that tile legislature intended to grant to the lieu creditors, thefMl benefit of the building, as a fund to pay their debts~ and this would not be done by giving the house, and not the lot. The first case in which this question was made, was Browne v. Smith, ~ Browne's Rep. ~ 9 , in note. The case was this: The defendant was seized of a lot in the city of Philadelphia, upon which he erected a building, in doing which he contracted debts to material men. After the commencement of the building, the plaintiff recovered a judgment against him, and issued executions~ upon which both house and lot were sold. It was contended on behalf of the judgment creditor, that the lien creditors, were entitled to be paid out of so much of the purchase money, only, as represented the building, lea~'in$ the proceeds of the lot, to "pay the judgment ; but Rush, president, delivered the opinion of the court, that the house and lot were both equally subject to the claims of the lien creditors. The same point came before the district court, for the city and county ot' Philadelphia, in the case of the Olympic Theatre, but the court expressed no opinion thereon. The case of Lyle v. Ducomb, 5 Binney's Rep. 585, was a decision, by wi~i& the mortgagee of a tot of ground, took not only the ground, but the buildings erected subsequently to the mort~a~e,'in preference to t!~e !ie:J creditors, and that decision was founded~, ~-il part, upon the reasoning that supports the case of Browne v. Smith/ and, so far, corrob.,)t')~tes Judge Ruslffs opinion. 2L~(!!t,. The a/)pu~'¢enances to the building and lot.--There are •man)" t)~ings which are usually used with a house, or other building, and which are so inseparably connected with them, that the enjoyment is not perfect without them, thes% in law, are called appurie~o~ccs. The word is derived from the French word "appartenir~" to belong to. As it wouhl be extremely inconvenient, and-sometimes imt)ossible, to enumerate these, on all occasions, it is a rule of law, ihat they pass by the grant of the principal. In like manner, they are bound wlwre the principal is bound. I he ca~t. ol M Ilhenny v. Pratt, before c~ted, furmshe., a ~ery correct insianee of the appurtenances being bound ; so much so, tl[a: we • need seek tbr no other exemplification. A court was laid open, upon each side of which certain houses were erected: now every one will perceive, that if the couri was closed, the tenants would have uo means of passing to and from their dwellings, and, consequently~ the enjoyment of the buihlings would be nearly, if not entirely; destroyed. The court~ then, was a necessary appendage to tile house~ it was al~
AMEFdCAN M~'CIIANIC$ ~ MAGAZINE.
a~purtenance, or belonging to it, and, as such, was bound by the hen. " Sdly. The fixtures. With respect to what are termed in law, fixtures, I would observe, ~hat they are of two kinds; those that are accessary to things of a per3ona[uature, as to the carrying on of trade, in which case the,Care considered as chattels; and those that are necessary, as access'aries to the enjoyment of the inheritance, when they are considered as a part thereof. It is the latter class only that are bound by the mechanids lieu. The law on this subject, was reviewed in {lie case of the Olympic Theatre. The third general question is, what is the nature of the preference given ? Tiffs may be divided into the following heads: As regards a previo~s mor[g'age.~As regards a s~,bsequent mortgage.~Where there are twofunds.~As regards a previousjudgment.~As regards a sub~eq~ent judgment.--As regards the lien o f a vender of the lot.--As regards a rent charge. As regards a previous mor&~age.~The act declares that the building shal~ be subject to the (:lebis of the mechanic~ and matevlal men, "before any other lien, which originated subsc(Dent (subseq)~cntly)to the commencementof the building." Rule l. The mot't~a~ee of a lot of ~round, re)on which a building is afteewards erected, ~i's~i)ret'erred, ho{l~ a.~ to tl~e lot and the buildi~ng, betbre the mechanics and material men, whose debts were created in erecting the building. 5 he 1 1 tff In tim cane of Lyle v. Ducomb~ 5 Bin. Rep. 85, t p a'nt" had a mortgage on a lot of ground, the property of the defendant, oa which was a fra~ne building. Subsequently to the date, and the recording of the mortgage, the defendant pulled down the frame building+ and erected a brick one in its place; and the supreme court were of o inion, that the mortgagee hada lien, not only on the lot, but on the 'Pbldldingerected subsequentlyto the mortgage, in preference to the workmen and material men. Rule £. And if, instead of the mortgage being given for a debt ac~ tually due, it be given to indemnify the mortgagee against loss ia consequence of his ~[rawing notes in favour o f the mortgager, yet the mortgagee has a lien on tile lpt, and the buihlings erected subsequently to the date and recording of the mortgage. Rule 3. In like manner, if the parties, by indorsement on the mortgage agree~ that instead of drawing notes for the whole amount, the mortgagee slmll indorse part, tbr which the mortgage shall be a security, the mortgagee will have a lieu for the indorsements, not only a~aiast the mort~a~er~ but also against the mechanics and material m~en, who subsequeu~tIy erect a building on the lot. These positions ar~e all supported by the decision in Lyle v. Ducomb, in 5 Bin. Rep. 585. Rule 4 But if a mortgage is given upon a lot, upon which a build~, , ~ . . .at t h e. . commencement. of• which m~lsafteruardserected, , . building. . , ~; the six mouths, allowed tbr recording a mortgag% haa no~: expu'eu: ann
213
aotiee~ trespass further on the patience of our readers; but shall conelude with recommending its perusal to all persons who take an interest in such investigations, as one of the ablest works with which we are acquainted.
~OR THE FRAnkLIN ffOU~NAL,
M E C H A N I C A L J U R I S P R U D E N C E . ~ N o . 4. I~Y P . A. B R O W N E ,
ESQ.
On Mechanics' Liens. T h e next point for eonsideration~ as relates to the suhject matter of ~he contract, is, S. The contract of exchange of labour or materials. I t sometimes happens that mechanics and material men, instead of conh'actlng, in the usual way, for money, stipulate with each other to exchange fiibour for labour, or materials fi)r materials, or labour for materials. ~Vhciher persons thus situated, have a right to file claims against the bu~ldings,-has been made a question. The judges of the district ceurt, M ' K e a n and I1~gersoll, were divided in otfinion , and the cause was removed to the supreme court, where it has been detemfined, flint the lien is extended to such contracts. S. C. Dee. 189.5. Hinchman v. l,ybrant. The time within which the contract .is to be executed. The materials may be furnished~ either before the commencement of the building, or while it is progressing; but if they are furnished afler the building is finished, no lien is created. I t is no uncommon thing to collect the materials for a building~ and prepare the sashes~ doors~ &c. before the building is commenced; and ;,vhen this is done in the regular course of business, there would be no equity in excluding them from a lien ; but every man is required, to exercise common care and prudence, in the management of his concerns; and cmmnon care and prudence are wanting~ where materials are furnished~ after a building is finished. Therefin'e, in the case of t[~e Ol~,mpic Theatre, the court admitted as lien% all materials furnished before the building commeneed~ and while it was progressing, but they refi~sed to admit any claims~ for materials furnished, efter the building was finished. The place over which the contract operates. The law of 1803 was confined to the city of Philadelphia, the distrier of Southwark, and the township of the Northern Liberties. The act of 1806 speaks of the city and county of Phlhtdelphia ; and by several subsequent acts, the benefit has been extended almost over the state. The second general question is, " U p o n what does the llen attach ?" The ~'ords of the act ar% " a l l and every dwelling house, or other
214
T I l E FRANKLIN JOUI1.NAL AND
buildillg;" which expressions, as we have before seen, includes every edifice whatever. W e shall now proceed to inquire, what things are included under the above expressions. These are: 1. The lot.w2. ~k'he appurtenances.--3. Fixtures. ] st. The lot.--Although the act of assembly speaks of the lien as attaching to the building only, yet the lot on which it stands, and as much as is required fl)r its necessary enjoyment, is also affected by the lien, and may be sold with the building. It is evident, that tile legislature intended to grant to the lieu creditors, thefMl benefit of the building, as a fund to pay their debts~ and this would not be done by giving the house, and not the lot. The first case in which this question was made, was Browne v. Smith, ~ Browne's Rep. ~ 9 , in note. The case was this: The defendant was seized of a lot in the city of Philadelphia, upon which he erected a building, in doing which he contracted debts to material men. After the commencement of the building, the plaintiff recovered a judgment against him, and issued executions~ upon which both house and lot were sold. It was contended on behalf of the judgment creditor, that the lien creditors, were entitled to be paid out of so much of the purchase money, only, as represented the building, lea~'in$ the proceeds of the lot, to "pay the judgment ; but Rush, president, delivered the opinion of the court, that the house and lot were both equally subject to the claims of the lien creditors. The same point came before the district court, for the city and county ot' Philadelphia, in the case of the Olympic Theatre, but the court expressed no opinion thereon. The case of Lyle v. Ducomb, 5 Binney's Rep. 585, was a decision, by wi~i& the mortgagee of a tot of ground, took not only the ground, but the buildings erected subsequently to the mort~a~e,'in preference to t!~e !ie:J creditors, and that decision was founded~, ~-il part, upon the reasoning that supports the case of Browne v. Smith/ and, so far, corrob.,)t')~tes Judge Ruslffs opinion. 2L~(!!t,. The a/)pu~'¢enances to the building and lot.--There are •man)" t)~ings which are usually used with a house, or other building, and which are so inseparably connected with them, that the enjoyment is not perfect without them, thes% in law, are called appurie~o~ccs. The word is derived from the French word "appartenir~" to belong to. As it wouhl be extremely inconvenient, and-sometimes imt)ossible, to enumerate these, on all occasions, it is a rule of law, ihat they pass by the grant of the principal. In like manner, they are bound wlwre the principal is bound. I he ca~t. ol M Ilhenny v. Pratt, before c~ted, furmshe., a ~ery correct insianee of the appurtenances being bound ; so much so, tl[a: we • need seek tbr no other exemplification. A court was laid open, upon each side of which certain houses were erected: now every one will perceive, that if the couri was closed, the tenants would have uo means of passing to and from their dwellings, and, consequently~ the enjoyment of the buihlings would be nearly, if not entirely; destroyed. The court~ then, was a necessary appendage to tile house~ it was al~
AMEFdCAN M~'CIIANIC$ ~ MAGAZINE.
a~purtenance, or belonging to it, and, as such, was bound by the hen. " Sdly. The fixtures. With respect to what are termed in law, fixtures, I would observe, ~hat they are of two kinds; those that are accessary to things of a per3ona[uature, as to the carrying on of trade, in which case the,Care considered as chattels; and those that are necessary, as access'aries to the enjoyment of the inheritance, when they are considered as a part thereof. It is the latter class only that are bound by the mechanids lieu. The law on this subject, was reviewed in {lie case of the Olympic Theatre. The third general question is, what is the nature of the preference given ? Tiffs may be divided into the following heads: As regards a previo~s mor[g'age.~As regards a s~,bsequent mortgage.~Where there are twofunds.~As regards a previousjudgment.~As regards a sub~eq~ent judgment.--As regards the lien o f a vender of the lot.--As regards a rent charge. As regards a previous mor&~age.~The act declares that the building shal~ be subject to the (:lebis of the mechanic~ and matevlal men, "before any other lien, which originated subsc(Dent (subseq)~cntly)to the commencementof the building." Rule l. The mot't~a~ee of a lot of ~round, re)on which a building is afteewards erected, ~i's~i)ret'erred, ho{l~ a.~ to tl~e lot and the buildi~ng, betbre the mechanics and material men, whose debts were created in erecting the building. 5 he 1 1 tff In tim cane of Lyle v. Ducomb~ 5 Bin. Rep. 85, t p a'nt" had a mortgage on a lot of ground, the property of the defendant, oa which was a fra~ne building. Subsequently to the date, and the recording of the mortgage, the defendant pulled down the frame building+ and erected a brick one in its place; and the supreme court were of o inion, that the mortgagee hada lien, not only on the lot, but on the 'Pbldldingerected subsequentlyto the mortgage, in preference to the workmen and material men. Rule £. And if, instead of the mortgage being given for a debt ac~ tually due, it be given to indemnify the mortgagee against loss ia consequence of his ~[rawing notes in favour o f the mortgager, yet the mortgagee has a lien on tile lpt, and the buihlings erected subsequently to the date and recording of the mortgage. Rule 3. In like manner, if the parties, by indorsement on the mortgage agree~ that instead of drawing notes for the whole amount, the mortgagee slmll indorse part, tbr which the mortgage shall be a security, the mortgagee will have a lieu for the indorsements, not only a~aiast the mort~a~er~ but also against the mechanics and material m~en, who subsequeu~tIy erect a building on the lot. These positions ar~e all supported by the decision in Lyle v. Ducomb, in 5 Bin. Rep. 585. Rule 4 But if a mortgage is given upon a lot, upon which a build~, , ~ . . .at t h e. . commencement. of• which m~lsafteruardserected, , . building. . , ~; the six mouths, allowed tbr recording a mortgag% haa no~: expu'eu: ann