Ortwine v. Thomas

Alvey, J., delivered the opinion of the Court. The bill in this case was filed to enforce a mechanics’ lien, under Article 61 of the Code ; and by section 25 of that Article, where the lien is sought to be enforced by bill in equity, the same proceedings are directed to be had as are used by the Courts of Equity to enforce other liens'. The bill was filed against Caskey alone, the original owner, and for whom the houses were built, omitting altogether the purchasers who had become owners of the property before the lien claim was placed upon record, on the 7th of October, 1873 Without deciding whether it was or not essential to make all the owners of the twelve houses, for which material was furnished, and which are described in the lien claim, parties to the proceedings to enforce the lien, we can have no doubt that Thomas, the purchaser of the three houses upon which the lien is sought to be fixed, to the exclusion or exemption of the other nine, was not only a proper but an indispensable party. The Court, therefore, was perfectly right in admitting him as a party defendant on his own application.

But, whether Thomas could be affected by the evidence taken under the interlocutory decree against Caskey, before he, Thomas, was admitted as a party to the cause, having failed to except to such evidence before the argument in the Court below, (Cross vs. Cohen, 3 Gill, 271 ,) or whether the interlocutory decree was properly passed as against Caskey, the original defendant, are questions that we deem to be immaterial, and therefore do not decide ; for upon the whole evidence, including that taken under the interlooutory decree, we are entirely satisfied that the decree appealed from is correct, and must therefore be affirmed. It appears that Caskey built a row of houses, consisting of twelve, on the south-west side of Madison Avenue extended, commencing them in the spring and finishing them late in the fall of 1872, or early in the winter of ¹³⁷ 1873 ; and tbe bricks for the erection of these buildings were furnished by tbe claimant, the present appellant. There was no special contract for furnishing the bricks for tbe bouses, or for the pavements after tbe houses were finished ; but the bricks were ordered and furnished during the progress of the work, as they were wanted, and were charged in a running account against Caskey, commencing in April, 1872, and the four last items in which are charges for paving brick furnished in the months of April and May, 1873. As to the three houses sold to Thomas, they were finished in the fall of 1872, except some work about the fire-places, and the laying of the pavements in the yards ; and there were no bricks furnished for these houses on Caskey’s account after December, 1872.

Thomas entered into a contract with Caskey for the purchase of the three houses here involved, on the 17th of December, 1872, and by that agreement the houses were to be completed and ready for occupancy, and so to be delivered to Thomas, free and clear of all charges, taxes and incumbrances of every kind, except a certain mortgage and a ground-rent, on tbe first of January, 1873. Thomas took possession before the day mentioned, and on 3rd of January, 1873, be obtained from Caskey a deed for the bouses, which was placed on record on the 5th of February, 1873. As we have said, no bricks were furnished by the claimant on Caskey’s account, for the houses purchased by Thomas, .after the latter took possession in December, 1872 ; but there were some paving bricks furnished on Caskey’s account after that time, to be used about some of tbe other bouses in the row ; and Thomas purchased on his own account, and paid for, some twenty-five hundred paving bricks in April, 1873, which were used about tbe bouses purchased by bim. Tbe two last items in the claimant’s account against Caskey, are for paving bricks fur ¹³⁸ nished on the 14th of April, and the 20th of May, 1873, and these two items are relied on as saving the lien, and bringing the entire account within the limit prescribed by law for filing the claim ; Gode, Art. 61, sec. 23 ; the lien claim not having been filed until the 7th of October, 1873.

The onus of proving that any portion of the material