In re Perfetto

294 F. 538, 1923 U.S. App. LEXIS 2529

• Court: Court of Appeals for the Third Circuit
• Decided: December 12, 1923
• Docket: No. 3084
• Status: Published

Opinion

BUFFINGTON, Circuit Judge.

This case involves the question of priority of disputed lien date upon real estate of a series of judg-< rnents on the one hand, and a series of mechanics’ liens on the other. On distribution by the court o£ bankruptcy of the funds arising from the sale of two pieces of realty, the referee awarded parity of lien to both judgments and mechanics’ lien; the court reversed the referee and awarded priority to the mechanics’ liens. Thereupon the judgment creditors took this appeal.

A study of the case satisfies us that in the last analysis the settlement of the legal controversy involved largely turned on a fact question, namely, was there a continuity of building operation from its start, which would carry the mechanics’ lien back to such starting date, or was there an abandonment of such building operation and a beginning again at a later date, to which latter the mechanic’s lien dated back. In this regard the referee and the court found there had been no abandonment, the latter saying:

“Tbe referee bas found, as a matter of fact, that there was no abandonment of work. There is ample evidence in the record to sustain this finding.”

We find nothing in the record to warrant our setting aside findings by both referee and court. The Pennsylvania Mechanics’ Lien Act of June 4, 1901, § 13 (P. L. 431; Pa. St. 1920, § 14649), provides that in operations such as this “the lien of the claim shall take effect as of the date of the visible commencement, upon the ground, of the work of building the structure or other improvement,” and awarding b: diat date the mechanics’ liens antedate the appellants’ judgments, and consequently the corresponding preference which the statute,gives a mechanics’ lien over subsequent judgment creditors. This statutory preference the referee had no power, on. the theory of supposed equity, to scale down by prorating judgments with the mechanics’ liens.

Without entering upon a discussion of other questions, we restrict ourselves to saying they have all been considered, and, finding no error involved, the decree below is affirmed.