Reindollar v. Flickinger

Yellott, J., delivered, the opinion of the Court. On the 19th day of December, 1818, George A. Elickinger and George W. Beifsnider, and George A. Elickinger and George W. Beifsnider as partners, executed a deed of all their property,'real, personal and mixed, in trust for the benefit of creditors. The trustees, under the provisions of the deed, sold the property, and the proceeds were brought into the Circuit Court for Carroll County sitting in Equity, for distribution. Among other claims against said trust estate is that of Samuel E. Beindollar, as follows: Samuel E. Beindollar, of Taneytown, Carroll County, Maryland,, dealer, &c., &c., claims that by virtue of the provisions of Article sixty-one of the Maryland Code of Public General Laws, relating to mechanics' liens, he is entitled to, and has, a lien on the building and ground hereinafter mentioned, for the payment of the sum of two hundred and seventy-nine dollars and sixty-two cents, a debt due and owing by the above named George A. Elickinger and George W. Beifsnider, partners, trading under the name, firm and style of Elickinger and Beifsnider, for' lumber and materials furnished by him at the instance and request of said Elickinger and Beifsnider, and used in the erection of a building, two stories and attic, twenty by thirty feet, with shed attached one story high, by said ⁴⁷¹ George A. Fliekinger and George W. Reifsnider, partners, trading, &c., as Fliekinger and Reifsnider, on a lot of one acre of land, more or less, which George A. Flickinger purchased of T. H. Eckenrode and wife, said lot or parcel of land being situated in Taneytown, State and County aforesaid, as by reference to the deed, &c., will more fully and at large appear, and that the amount aforesaid, for which materials, consisting of the following named articles, and at the following named prices, were furnished at the following times, as appears by the account herewith filed and incorporated as part hereof.

In an account filed by the auditor in the Circuit Court, this lien claim of Samuel E. Reindollar is allowed in full. To this account exceptions were filed by Mary C. Flickinger who held a mortgage on the said property executed by her husband, George A. Fliekinger, before the execution of the deed of trust. Testimony was taken and the case being submitted, the Circuit Court (Miller, J.) passed an order sustaining said exceptions. From this order an appeal has been taken by Samuel E. Reindollar and the questions presented are now to be determined by this Court.

The learned Judge who considered and determined the matters involved in controversy, in the Circuit Court, in his opinion says: “ The claimant presents his claim as a mechanics’ lien, and insists that it is entitled to priority of payment on that ground. The question is whether a valid mechanics’ lien has been made out? In the most recent case on this subject, that of Wehr, et al. vs. Shryock & Clark, decided by the Court of Appeals at its last October Term, ( 55 Md., 336 ,) it was held in accordance with previous decisions on the same subject, that a mechanics’ lien is purely the creation of statute law, and to maintain and enforce it the requirements of the statute must be substantially complied with. One of these requirements, (Code, ⁴⁷² Art. 61, sec. 19,) is that every such claim shall set forth ‘the name of the owner or reputed owner of the building,’ and also the name of the contractor, architect or builder, when the contract was made by the claimant with such contractor, architect or builder.

In the case referred to the names of the reputed owners were set out in the claim, and also the name of the contractor, so as to make a case falling under section 11, of the same Article, which requires in such case sixty days notice in writing to be given to the owner. No such notice was given in that case, and the claimant then sought to use the claim for the purpose of reaching the interest of the contractor in the building; (he having acquired such interest under certain contracts with the owner), but the Court held that if it was his purpose to reach and affect this interest, he should have filed his claim in a different form ; in other words, under the form of a claim coming under section 11, the