Kendall v. Pickard , 67 N.H. 470 ( 1893 )

The builders' lien "shall continue for ninety days after the services are performed, or the materials or supplies are furnished, . . . and shall take precedence of all prior claims except liens on account of taxes." "Any such lien may be secured by attachment of the property upon which it exists, at any time while the lien continues, . . . and such attachment shall have precedence of all other attachments made after such lien accrued, unless founded on a prior lien." P. S., c. 141, ss. 16, 17.

By force of section 16, the lien during its continuance takes precedence of all other claims (of the character intended — Cole v. Colby, 57 N.H. 98, Pike v. Scott, 60 N.H. 469) except liens for taxes, of prior claims by its express terms, and of subsequent ones by necessary implication. Section 17 prescribes the mode of securing the lien, or making it available, and regulates the rights of the several lien-holders among themselves.

It is difficult to express in fewer and more explicit words the proposition that liens of the kind in question have precedence in the order of their accrual, and, if they accrue simultaneously, in the order of the attachments made to secure them. To make the lien available, judgment and execution against the debtor for the demand secured by it must be obtained. It is only by the levy of an execution that the property can be applied in satisfaction of the debt. The office of the attachment is merely to preserve the creditor's right to have the property applied in payment of his debt until by the levy of his execution an actual application can be made.

As the creditor can maintain no action against the debtor until his demand is due and payable, he cannot until that time secure his lien by attachment. The cause of action and the perfected enforceable lien accrue to him at the same moment. Bean v. Brown, 54 N.H. 395; Calef v. Brinley,58 N.H. 90; Hill v. Callahan, 58 N.H. 497; Hale v. Brown, 59 N.H. 551; Pike v. Scott, 60 N.H. 469.

Attachments in general rank in the order of their making, but an attachment to secure a lien has "precedence of all other attachments made after such lien accrued, unless founded on a prior lien." A lien attachment made before "such lien accrued" must necessarily be "founded on a prior lien." As between lienholders whose rights accrue at different times, a lien attachment made at any time within the ninety days has the same force and effect as if made the instant the right accrues. If successive attachments are made by several lien-holders whose liens accrue at the same time, they take rank in the order in which they are made, because no one of them is "founded on a prior lien." If they are made simultaneously, no one can be preferred to another, and each creditor is entitled to a proportionate part of the property if it is insufficient to satisfy the demands in full. Thurston v. Huntington, 17 N.H. 438. By "other attachments," other lien attachments are intended. Against attachments founded on claims not secured by lien, the lien-holder is protected by the provisions of the preceding section.

Case discharged.

All concurred.