Carey v. Wintersteen

60 Pa. 395, 1869 Pa. LEXIS 101

• Court: Supreme Court of Pennsylvania
• Decided: February 23, 1869
• Docket: No. 201
• Status: Published

Opinion

The opinion of the court was delivered,

by

Thompson, C. J.

The lien filed in this case was against “ all that frame engine and shaft house, together with the engines, machinery and fixtures therein contained or connected therewith, situate in the borough of St. Clair, in the county of Schuylkill, at the colliery known as the Mammoth Shaft and Slope Colliery, on a tract of land containing 400 acres, more or less, owned by the said Henry C. Carey, Abraham Hart and Eliza C. Baird,” &c., for work done and materials furnished by the plaintiff between the 26th day of March 1862 and the 24th day of April 1865, “ which said materials,” the claim proceeds, “ were furnished and work done at the instance and request of the said Henry C. Carey, Abraham Hart and Eliza C. Baird, they being owners or reputed owners thereof, and Ell Kart, doing business as E. Hart & Co., the contractor, architect or builder thereof.”

This is unmistakably a claim against the fee in Carey, Hart and Mrs. Baird, founded on an alleged contract with them by Ell Hart & Company, as contractor, architect or builder.

The defendants pleaded nil debent, and specially that Ell Hart was lessee of the premises, and not contractor, architect or builder of the said Carey, Hart and Mrs. Baird, and that the said Ell Hart had no authority to act for them, or to bind their estates by building or otherwise; and that if the plaintiff did the work and furnished the materials for which the lien was filed, that the same were done and furnished for Ell Hart, who was the'lessee of the premises at the time of, and before the contract for doing the work and furnishing the materials was entered into, and the lien was filed; and that the plaintiff had filed a lien for the same work and materials against the said Ell Hart, and against his estate, &c.

The jury found specially the facts of the plea in favor of the defendants, excepting the last clause, which is not material in the light in which we view this case, and the court entered judgment on the verdict against Ell Hart as Ell Hart & Co.

The plaintiffs in error complain of this, and they have a right to do so, unless, indeed, it can be maintained that a judgment on the lien filed, does not bind the estate against which it is filed, but some other estate, in some other ownership, on a contract by other parties. If no execution were ever to issue on the judgment, there might be less to complain of by the plaintiffs in error, or it might possibly be regarded as harmless. But the object of the sci. fa. on the lien, was to call on the defendants to show cause why the plaintiffs should not have execution of the premises bound by the lien; and if he should obtain judgment, the levari facias which would follow would contain a marídate to the sheriff to levy on and make the amount of the judgment recited in his writ with interest and costs, out of the premises as the same are described in the record: Act of June 16th 1836, § 21.

It is, therefore evident, that if execution and sale of the premises described in the lien filed were to follow this judgment, either a different interest from that described in the lien of record would be sold as a consequence, or an interest not bound by the judgment. The lien filed is against the fee; while the judgment is against the leasehold interest. If the leasehold interest only were sold, although the title would probably be void for want of a lien to support it, it might not concern the defendants directly, yet it would materially damage their interests, both in fixing a blot on their title, and most probably in creating litigation between the holder of the lease and a purchaser at the sale. A coal-mine might be destroyed almost, by suspension of operations during litigation, by becoming filled with water. These considerations show an interest in the defendants, not only to protect their title, but their interest as lessors, from a sale on the judgment rendered in this case, although it is not against them in point of fact.

The verdict very clearly demonstrates, that the plaintiff missed his remedy, when he filed his claim against the owners of the property in fee who were, as it shows, not contractors, instead of against the lessee who was the contractor, and at whose instance the work was done and materials furnished. The Act of 17th February 1858, applicable only to Schuylkill and Luzerne counties, authorizes the filing of liens by mechanics and material-men against the estate or interest of the lessees, and the sale of their interests on judgments obtained thereon. As, therefore, the verdict has established that it was to a lessee, and for a leasehold estate, that the work and materials were furnished, it is manifest that only the interest could be bound; and no such lien having been filed upon it, there is no. lien to support this judgment against the defendants, for their estate was not debtor or bound — nor against Ell Hart & Co., lessee, for the lien was not filed against his interest. We must therefore reverse the judgment. It seems that the plaintiff did file a claim against the lessee and contractor, Ell Hart, as Ell Hart & Company, for the work and materials claimed for in this proceeding; if so, possibly he may be secured by proceedings on it; but about that we give no opinion, as it has not, in the view we have taken of the case, come properly within the range of our investigation.

Judgment reversed, .and judgment is now entered in favor of the defendants.