Brown v. Zeiss , 9 Daly 240 ( 1880 )

J. F. Daly, J.

The lien act (§ 7) provides that, except as provided in the fourth section of the act, the lien shall attach from the time of the filing of the claim to all the right, title, and interest which the owner then has in the property therein described, to the extent of the liability of such owner for the claim preferred. Unless the 4th section of the act makes the lien relate back to the time of the commencement of the lienor’s work, or the furnishing of his materials, or to any period prior to the actual filing of the notice, the lien will be cut off, if, at the time of filing the notice, the premises have vested in another by grant, or by operation of law, as in the case of the death of the contracting owner (Meyers v. Bennett, 7 Daly, 471).

The 4th section of the act contains no such provision, but simply declares that the lien “ provided for in this act shall be preferred to any lien, mortgage, or other incumbrance of which the lien-holder had no notice, and which was unrecorded at the time of filing of the claim referred to in the next section.”

It will thus be seen that the only exception to the general provision in section 7, as to when the lien shall attach, refers to the extent of the owner’s right, title, and interest, as affected by prior liens and incumbrances. Nothing contained in the 4th section justifies the conclusion that when the owner has parted with all right, title and interest in the premises a lien subsequently filed attaches to anything.

The express provision of the 7th section as to when the lien shall attach, i. e., from the time of filing, should be construed as expressing the clear intention of the legislature, notwithstanding that a different intent ma;f be inferred from a preceding section.

Section 3 of the act does admit of such an inference, as it provides that “ the land . . . shall be subject to the liens, if at the time the work was commenced or the materials for the same had commenced to be furnished (sic) the land belonged to the person who caused said building, improvement or structure to be constructed, altered or repaired, but if such person owned less than a fee simple estate in such land then only his interest therein shall be subject to such lien.” But with an express provision that the lien shall attach from the time of filing the claim (§ 7), we have no right to declare judicially that it shall attach from the time the laborer begins his work on the premises, or the material-man commences to furnish materials.

The 3d section is, besides, open to the construction that it is intended to provide for the cases in which the land, or an interest in the land, as distinguished from the building upon it, shall be subject to the lien of the mechanic who is hired by the owner of the huildwig or his agent, to furnish labor or materials upon such building. The first section of the act provides for a lien on the building, the third section for a lien on the land, or the interest in it possessed by the owner of the building who authorizes the work.

The judgment should be reversed and judgment given for defendants, sustaining their demurrers, with costs.

Charles P. Daly, Ch. J., and Labrémose, J., concurred.

Judgment reversed, and judgment ordered for defendants, "with, costs.