Jacob A. Bohem & Bros. v. Seel , 185 Pa. 382 ( 1898 )

Opinion by

Mb. Justice Mitchell,

The lien was filed in time' but was defective on its face in being filed by a subcontractor and containing only a lumping charge. Plaintiff however averring that John E. Norton, named in the lien as contractor, was in reality the owner, and the title was put by him in the name of Ida F. Seel as a device to defraud his creditors, moved to amend by striking off the word “contractor ” after Norton’s name so that the lien should stand on the record as against Seel and Norton, “owners.” The court however discharged a rule to this effect, and made absolute a rule to strike off the lien.

The amendment was asked after the six months in which a lien could have been filed, and we have therefore to consider whether it should have been allowed under the Act of June 11, 1879, P. L. 122. We are of opinion that so far as the parties now before us are concerned the amendment was purely formal and should have been allowed as “ conducive to justice and a fair trial upon the merits ” within that act. No new party is sought to be brought on the record, all were before the court already. The only change is in the capacity in which Norton is to be charged. He is named now as contractor, and plaintiff’s contract is charged to have been made with him. If he was in fact the owner, as now averred, he has no equity to complain that his houses are made liable for the debt which he incurred in building them, and his apparent legal right to have them escape lien in a lump sum by a subcontractor, is negatived by the fraudulent device resorted to in order to protect them from a lien to which on the true facts they would be subject. We regard the case as belonging to the class of Ballman v. Heron, 160 Pa. 377, and 169 Pa. 510, where it was held that one of several tenants in common may become contractor for the improvement of the joint property, and his part ownership will not prevent his waiver in good faith of the right of lien both as to himself and his subcontractors, but “ if the contract is not made in good faith but for the purpose of misleading and so defrauding subcontractors and material men, it should be held invalid because of the fraud.” So in the present ease if Norton was in fact the owner, his contract with plaintiff for a lump sum was valid and would sustain the lien. The plaintiff should he allowed to so amend his claim of record as to enable him to prove the facts, if they are as he avers.

Of course this amendment affects only the parties to the record now before ns. If there are any intervening rights of terre-tenants or others they will not be prejudiced by this decision but will stand or fall upon their own merits.

Tlie order striking off tbe lien is reversed, tbe rule to amend reinstated and made absolute, and tbe record remitted for further proceedings.