Russell v. Howell

69 A. 886, 74 N.H. 551, 1908 N.H. LEXIS 15

• Court: Supreme Court of New Hampshire
• Decided: May 5, 1908
• Status: Published

Opinion

Young, J.

The questions discussed and the only ones considered are (1) whether the owner’s death terminated the plaintiffs’ lien, and (2) whether the heirs were properly made defendants at the time this proceeding was begun.

1. The statute (P. S. c. 141, ss. 10, 16) provides in substance that persons who furnish work as the plaintiffs did shall have a lien on the property for ninety days after the work is completed. There is nothing in the statute to suggest that the lien shall be lost if the owner dies within the ninety days; consequently it must be held that the owner’s death did not destroy the plaintiffs’ lien. The same construction has been given similar statutes in other jurisdictions. 27 Cye. 52.

2. Real estate vests in the heirs on the death of the owner; consequently they were the proper defendants when this proceeding was begun. As the land is needed to pay debts, it was proper, after the appointment of the administrator, to cite him in to defend ; but on the agreed facts, neither he nor the heirs can make any defence to this action which the owner could not make if living. There must be, therefore, a verdict for the plaintiffs according to the agreement of the parties; for in so far as the widow is concerned, she stands just as she would if the lien had been foreclosed in her husband’s lifetime.

Gase discharged.

■All concurred.