Heath v. Tyler

Grason, J., delivered the opinion of the Court. The bill of complaint in this case was filed for the sale of Mrs. Heath’s house, No. 597 Lexington Street, against which the appellee had filed a mechanics’ lien on the second day of June in the year 1874. The proof shows that Joseph Gr. Wilson was the owner and builder of a row of four houses on Lexington Street, numbered 595, 597, 599 and 601, and that the appellee furnished the lumber for them upon Wilson’s order as it was needed for the houses.

The last item of lumber which was furnished for these houses, was delivered on the 11th day of August, 1873. The appellee had been furnishing lumber to Wilson for other houses also, and in April, 1873, Wilson conveyed to Tyler, the appellee, No. 601, one of the four houses on Lexington Street, the net purchase money of which amounted to $8837.69, after the appellee had deducted from the price to he paid what it cost him to finish the house after the purchase. This sum was deducted from the sum then due by Wilson to the appellee, made up of balances due for lumber furnished for other houses, as well as for the four houses on Lexington Street, and the balance remaining due to the appellee was the sum for which the lien in this case was filed against No. 597, the house of the appellants. In January, 1874, Wilson conveyed house 597 to the appellants, who took possession of it and rented it to Wilson.

It further appears in proof, that Tyler was anxious to have payment of the balance due him amounting to a little over nine hundred dollars, and spoke to Wilson about it, and it was arranged between them that he should furnish more lumber for the house 597 so as to preserve the right of lien, and accordingly a small lot of flooring was sent to the house and receipted for by Mrs. Wilson, the price of the lumber thus sent amount ³¹⁷ ing, with the charge for hauling, to $8.49. It appears that the appellants had no knowledge of this transaction whatever, and it took place months after the house had been conveyed by Wilson to the appellants, and after the appellee had knowledge of the conveyance. There is no proof that this lumber was needed to finish the house, or that it was ever used in its construction. On the contrary, the proof shows that it could not have been so used, for the carpenter who did the work, testifies that he finished the house on the 28th day of March, a week or ten days before