Ettridge v. Bassett

136 Mass. 314, 1884 Mass. LEXIS 94

• Court: Massachusetts Supreme Judicial Court
• Decided: January 4, 1884
• Status: Published

Opinion

Colburn, J.

Before August 20, 1881, Bassett had no title to the land, and although, on August 13,1881, Bassett and New-hall made an oral agreement as to the terms of the transaction, which was carried out and put in writing on August 20, Bassett had no authority from Newhall to do any work upon the land before August 20. Under these facts, Bassett could not subject the land to any lien before August 20. Hayes v. Fessenden, 106 Mass. 228.

By the deed and mortgages of August 20, Bassett had but an instantaneous seisin of an unencumbered estate, and had nothing more than an equity of redemption to which any lien could attach. Burns v. Thayer, 101 Mass. 426. Perkins v. Davis, 120 Mass. 408. The mortgages to secure the purchase money of the land, and for future advances, were valid mortgages. Commercial Bank v. Cunningham, 24 Pick. 270. Groddard v. Sawyer, 9 Allen, 78. See also Brooks v. Lester, 36 Md. 65; Moroney’s appeal, 24 Penn. St. 372. In Dunklee v. Crane, 103 Mass. 470, and Amidon v. Benjamin, 126 Mass. 276, upon which the petitioner relies, — in the former of which it was held that a lien had priority over a mortgage, and in the latter, that a lien was not affected by an absolute conveyance, — the persons who made the agreements under which the liens were claimed were the owners of the lands at the time the agreements were made.

The petitioner’s lien was subject to the mortgages, unless the agreement, which was executed as part of the same transaction with the deeds and mortgages, enlarged his rights. Apparently the only purpose of Newhall was to effect a sale of his land, and get security for the purchase money and the money he was to advance, and that of Bassett to acquire title to the land and obtain sufficient advances of money to enable him to improve the property for his benefit. It was necessary that Bassett should have an agreement to show what he had received on the mortgages, and the amounts of future advancements, and the terms and conditions upon which he should be entitled to them, and it was necessary that Newhall, who had received no money for the land, should have an agreement showing what Bassett was to do upon the land to furnish security under the mortgages for the purchase money and future advances, and when he should do it, and what the mortgagee’s rights should be in case of Bassett’s default.

Under the agreement, Newhall had, and could have, no title or interest in the land or buildings, except such as he had under the mortgages. His security might be increased, but his title or interest could not be enlarged by any improvements made upon the land. He was only a creditor holding a lien under the mortgages, and, since the mortgages were given, has never acquired any title except under them and their foreclosure. He could in no legal sense be held to be in the position of an owner. Goodwin v. Richardson, 11 Mass. 469.

We find nothing in the agreement from which it can be inferred that Newhall assented that any lien should take precedence of the mortgages. The clause providing that claims for liens might be settled by the mortgagee, and the amounts paid to settle them charged as advances under the mortgage, we infer to have been inserted as a precaution on the part of the mortgagee, to enable him to relieve himself from any annoyance, delay, or litigation to which he might be subjected upon Bassett’s default; but there is nothing in it which enlarged the petitioner’s right of lien.

In Hilton v. Merrill, 106 Mass. 528, and Smith v. Norris, 120 Mass. 58, upon which the petitioner relies, the persons making the advances for the erection of buildings, and against whom the liens were claimed, were the absolute owners of the lands upon ■ which the buildings were being erected during the time the labor was being performed for which the liens were claimed.

Petition dismissed.