Mechanic's Lien. Statute. Words, "Consent." At the trial of issues framed for a jury regarding two petitions for the establishment of liens for work performed, and one for labor performed and materials furnished, in the construction of buildings upon certain land, there was evidence tending to show the following facts: In June of a certain year one B. owned the land. At that time one H. made an agreement in writing with a certain bank that the bank should make loans to H. in instalments as work upon buildings to be erected by him on the premises in question progressed, the loans to be secured by a mortgage upon the premises. In July of the same year B. agreed in writing with H. to sell to him the land and to convey it on or before January of the next year "free from all incumbrances, except" a restriction as to the nature of buildings to be erected thereon, H. to pay a part of the purchase price in cash, and B. to take a mortgage on the premises as security for the payment of the remainder. Thereafter, and before conveyance by B. to H., they together examined plans for the buildings, and B. approved of them, knew that H. was to procure money from the bank for their construction, and knew that work was being done on the premises and that materials were being furnished for the erection of the buildings by various parties under contracts with H. Such contracts were made by the petitioners and all work for which liens were claimed by two of them was performed and two stories of two buildings on the premises were put up before B. conveyed to H. All work done and materials furnished by the third petitioner was done and performed after such conveyance. At the same time that the conveyance was made, H. gave a first mortgage to the bank and a second mortgage to B. Subsequently, and before the petitions were filed, B. entered to foreclose his second mortgage. No notice in writing had been given to B. by any of the petitioners before any of the labor was performed or furnished or the materials furnished. Held, that the jury were warranted in finding that the labor performed and materials furnished by the petitioners were performed and furnished with the consent of B., who was the owner of the land when the petitioners' contracts were made with H., also that the seisin of H. "was not instantaneous as against B.," and that the liens should be established.
Under Pub. Sts. c. 191, § 1, now R.L.c. 197, § 1, the consent of the owner of land, or of any person having authority from or rightfully acting for such owner, which is required for the establishment of a mechanic's lien for labor performed or furnished or for materials furnished in the erection, alteration, repair or removal of a building or structure upon such land, is consent to the performance of the work or to the furnishing of the materials, not to the creation of a debt for such labor or materials.
One, who had an entire contract with the owner of certain land for the performance of labor and furnishing of materials for the construction of a building thereon, performed labor, and then filed in the registry of deeds the certificate required by Pub. Sts. c. 191, § 6, stating that he had a claim for both labor performed and materials furnished, but not itemizing the claim for labor. Afterwards he brought a petition to establish a lien for the labor performed only, at the trial of which it was agreed that there was no intention on the part of the petitioner to mislead, and that the respondent was not misled, "by reason of an inaccuracy in stating or failing to state the contract price, the number of days of labor performed or furnished and the value of the same." Held, that the inaccuracies in the certificate did not prevent the establishment of the lien.
KNOWLTON, C.J.
The question argued by the respondent is whether there was evidence to warrant a finding that the labor and materials furnished by two of the petitioners, and the labor furnished by the other petitioner, were furnished with the consent of the respondent Baxter, who was the owner of the real estate at the time when their respective contracts were made. The report of the auditor on this point, the testimony of the respondent himself, and the other evidence in the case, not only well warranted, but almost required this finding, under the rule of law stated in Davis v. Humphreys, 112 Mass. 309, Carew v. Stubbs, 155 Mass. 549, Smith v. Norris, 120 Mass. 58, Worthen v. Cleaveland, 129 Mass. 570, and Hilton v. Merrill, 106 Mass. 528.
The respondent's seventh request for a ruling was rightly refused. The petitioner was not called upon to show consent of the owner to the creation of a debt for the labor or materials furnished, but only his consent to the furnishing of the materials or the performance of the labor in the erection of a building on his real estate. Pub. Sts. c. 191, § 1. R.L.c. 197, § 1. In the language of the opinion in Vickery v. Richardson, 189 Mass. 53, 55, the consent required "is to the performance of the work, not to the lien, or the amount for which under it the interest of the owner in the land can be charged."
The respondent's contention as to the inaccuracy in the certificate is met by the agreed statement of facts and by the decision of this court in Devine v. Clark, 198 Mass. 56. See also Smith v. Norris, 120 Mass. 58; Vickery v. Richardson, 189 Mass. 53.
Inasmuch as the contract of Sanborn to furnish materials was made with the consent of the owner of the real estate and of the contractor that bargained for them, who became the owner of the real estate before the materials were furnished, so that the contract was made with the person who was the owner when they were furnished, it was not necessary to give a notice of an intention to claim a lien to the former owner who subsequently had acquired a different interest under a mortgage. Carew v. Stubbs, 155 Mass. 549.
Apart from this, the trial judge rightly found that the respondent's title by mortgage was not acquired under a mortgagor who had only an instantaneous seisin. Before the respondent's mortgage took effect, the mortgagor had made an important contract with the holder of the first mortgage, whereby he had acquired rights to be exercised in the use of the property, and had given rights in it. In this respect the case comes within the decision in Libbey v. Tidden, 192 Mass. 175, 185.
Exceptions overruled; orders of judgment and sale affirmed.