Pike v. Scott , 60 N.H. 469 ( 1881 )

The statute gives a lien to any person who, by himself or others, performs labor or furnishes materials to the amount of fifteen dollars or more for erecting, altering, or repairing house or other building or appurtenances, by virtue of a contract with the owner, which lien continues for ninety days after such labor is performed or materials are furnished, and may be secured by attachment, the writ and return distinctly expressing that purpose. G. L., c. 139, ss. 10, 11. The essential requisites of the lien are furnishing the lumber or materials for the building or appurtenances under a contract with the owner, and an attachment within ninety days. The referee has found that the plaintiff furnished lumber, some of it within ninety days, under a contract with the owner; and that it was not used on the building, but was used in constructing drains through which the water from the roof was conducted to the sewer in the highway. These facts bring the case within the statute. It is not material that the lumber was not used on the building, for the drains on which it was used were appurtenant to the building. They would pass as such by a conveyance of the land and building. Donaldson v. Wood, 22 Wend. 395, 400; McDermott v. Palmer, 8 N.Y. 383, 386; Moran v. Chase, 52 N.Y. 346; Phil. Mech. Liens, ss. 164, 165, 202. The question whether the lumber was furnished under a contract with the owner was one of law and fact, to be found by the trier of the facts, and the report of the referee has established the existence of such a contract. The question then is, for what amount the plaintiff is entitled to judgment against the property. The contract as found by the referee was, that the plaintiff agreed to furnish and the defendant to purchase all the lumber to build his house, except shingles and clapboards, and, so far as appears, both parties performed the contract. It was an entire contract; and if any part of the lumber was delivered within ninety days of the attachment, the lien was preserved for the whole. Calef v. Brinley, 58 N.H. 90. If the materials were furnished under one entire contract, one indivisible lien for the whole was created thereby. Phil. Mech. Liens, s. 324. Each lot of lumber furnished was not a separate cause of action, but a continuous dealing, and the right of securing it was not barred until ninety days after the delivery of the last lot. The fact of a change in the ownership of the lot is not material. When the defendant contracted with the plaintiff for the lumber, he was in possession of the lot on which the buildings were erected, under an agreement to purchase, which was subsequently completed. The fact that the defendant had mortgaged the premises does not affect the case. The lien had attached before the mortgage was made, and was superior to any rights of the mortgagee. Cheshire Prov. Inst. v. Stone, 52 N.H. 365. The fact that there was no express agreement for a lien is not material. The lien is a creation of statute, and attaches to the building and the interest of the owner in it by force of the statute.

Exception is taken that there was no allegation that the materials were furnished by virtue of a contract. There was no occasion for such an allegation. The statute only requires that the writ and return shall express the purpose for which the attachment is made. The command to attach was in order to secure and preserve the lien of the plaintiff, and the officer's return was of an attachment to secure and preserve the plaintiff's lien. This gives all the information to which the defendant was entitled, and the subsequent attaching creditors have no greater rights than the defendant. G. L., c. 139, s. 12; Hill v. Callahan, 58 N.H. 497; Emerson v. Emerson, 58 N.H. 413; Mathewson v. Powder Works, 44 N.H. 289; Carlton v. Patterson, 29 N.H. 580.

The plaintiff is entitled to judgment against the property in the first suit for $1,222.44, in the second suit for $119.93, and in the third for $161.30.

Judgment on the report.

CLARK, J., did not sit: the others concurred.