Shryock v. Hensel

Pearce, J., delivered the opinion of the Court. This is a creditor’s bill filed by Thomas J. Shryock & Company, The German Bank of Baltimore City, N. W. James & Company, Edward L. Kaufman & Company and the ⁶²⁰ National Mantel and Tile Company of Baltimore City, against Henry C. Hensel and J. Edmund Eckstine. The prayer of the bill, is for a decree setting aside as fraudulent and void, certain conveyances of real estate from Charles G. Hill and wife and J. Edmund Eckstine to Henry C. Hensel, declaring the property described in said deeds to be the property of J. Edmund Eckstine, and directing the sale of said property, and the distribution of the proceeds of such sale among the plaintiffs and the other creditors of J. Edmund Eckstine. To this bill the defendants filed a plea of res adjudicates, and an answer supporting said plea.

This plea set out with much fulness the mode in which Hensel acquired title to the land described in said deeds, and the substance of a contract between Hensel and Eckstine for the erection by Eckstine of a number of houses on said ground, and the creation of indebtedness from Eckstine to sundry persons for materials furnished and work done upon said houses. It also set out the filing of lien claims by the parties last mentioned, and the filing of a bill in equity to enforce these liens, resulting in a decree out of which grew the alleged adjudication. The case before us was set' down for argument upon bill, plea and answer, and upon hearing, the plea was allowed by the Circuit Court for Baltimore County in equity, and the plaintiffs refusing to join issue upon the averments of the plea, or to take testimony in reference thereto, the bill of complaint was dismissed, and from these orders this appeal is taken. : A brief outline of the proceedings in the former cause will be necessary to the proper understanding of the plea in this case. In November, 1899, Edward L. Kaufman & Company together with several other parties filed a bill against Hensel and Eckstine to enforce certain mechanics’ liens claimed by them against the land now in question and certain houses erected thereon by Eckstine, for work done and materials furnished Eckstine, in the erection of these houses.

This bill alleged that Hensel was, at the time of the doing of the work and the furnishing of the materials, the owner of said ground ⁶²¹ and the houses thereon, and that Eckstine was the builder and contractor, for whom the work was done, and to whom the materials were furnished. It also alleged that John Eckstine, Charles G. Hill, William C. Robinson, Alice A. Harden, trustee, and the Baltimore Mutual Aid Society, claimed to be owners or reputed owners of said land and houses, orto have some interest therein, and they were therefore made parties defendants : Also, that the firm of F. O. Singer & Company, and the firm of Myohl & Luken claimed to have mechanics’ liens against the same property, and they also were made parties defendants. Hensel answered, alleging that he was the owner of the ground and houses, and denying that any of the parties to the cause had any mechanics’ lien claims against the property. ■ J. Edmund Eckstine answered that he was the contractor and builder of the houses, but that all mechanics’ lien claims against them had been paid. He did not state who was the owner or reputed owner.

John Eckstine and Charles G. Hill answered, each disavowing any interest in the property. Wm. C. Robinson, Alice A. Harden, trustee, and the Baltimore Mutual Aid Society, answered, each claiming to hold ground rents or mortgages against part of the property in question, but claiming no other interest therein. Myohl & Luken answered, alleging that they held a mechanics’ lien claim for #2,713.77 against said houses, and that J. Edmund Eckstine was the contractor and builder of said houses, and “that the defendant, Henry C. Hensel, was the ostensible owner of the said dwelling houses and the ground on which they were built, but that both the said Eckstine and Hensel were, and are now, interested in said houses and ground.” F. O. Singer & Company answered in the same exact terms as to Eckstine and Hensel, and set up a mechanics’ lien claim of #1,272.50.

A great mass of testimony was taken relating to the several mechanics’ lien claims, ánd after argument, an opinion and ⁶²² decree was filed, sustaining all the lien claims of the parties to the bill, except that of the National Building and Supply Company, and decreeing a sale of the land and houses for the payment of the claims allowed. The opinion was filed January 22nd, 1901, and on the 16th of January, 1901, a petition was filed by Thomas J. Shryock & Company, The German Bank of Baltimore City, and N. W. James & Company, setting forth the assignment to them in certain proportions by Myohl & Luken, of their lien claims, and the decree passed February 2nd, 1901, recognized this assignment and directed payment to the assignees accordingly. Hensel filed as an exhibit with his answer to a petition for a receiver, which was filed in that cause, an agreement between himself and J. Edmund Eckstine, made April 10th, 1899, for the erection of the five houses in question, in which agreement Hensel is “designated as owner” and Eckstine as contractor, but neither Hensel nor Eckstine, when sworn as witnesses, testified, nor were interrogated, as to the ownership of the land and houses. The opinion states: “It is shown by the evidence in this case that on April 10th, 1899, Henry C. Hensel, the owner of certain lots of ground in Baltimore County, entered into a contract with J. Edmund Eckstine, a contractor, by which Eckstine obligated himself to erect within the time limited therein, five houses as specified in the agreement.” The opinion also states later, “The claim of the National Building and Supply Company will be disallowed as no notice was given, it appearing that at the time the goods were furnished and the work done, Eckstine was not the owner of the property.” These are the only references in the opinion to the ownership of the property.

The decree does not refer to the ownership at all, but merely provides for a sale of the property “unless the defendants, Henry C. Hensel and J. Edmund Eckstine, pay to the plaintiffs,” naming them, the respective sums found due them within thirty days from the date of the decree. On appeal to this Court, that decree was on March 6th, 1902, reversed, the lien claims of the National Mantel and Tile Company, of Edward L. Kaufman & Com ⁶²³ pany, and of Myohl & Luken being disallowed for reasons not material to this case. Thereupon, on March 21st, 1902, the present bill was filed by the assignees of Myohl & Luken, and by the other rejected lien claimants, for the purpose already stated. It does not appear whether a sale of this property has been made under the former decree, but the only effect of such sale would be to transfer the present controversy to such surplus proceeds of sale as should remain, after payment of the lien claims provided for by the former decree.

It is contended by the appellees that the precise point raised in this case as to the ownership of the property, was decided in the former case, and against the contention of the plaintiffs in this case; that all the parties in this case were parties to the former case, and that the question of ownership is therefore res adjudicata. The appellants, on the other hand, contend that the parties in this case are not the same as in the former case, because there, Shryock & Company, The German Bank of Baltimore, and N. W. James & Company were mere assignees of Myohl & Luken, who were themselves parties to the former suit, while here their assignees sue in their own name and right; that the question of ownership was not in issue in the former case, and that the only issue was lien vel non. As to the identity of the parties to these suits, it would seem to be sufficient to say, that so far as a decree operates as a finality, upon any point involved, it concludes not only the parties, but all those in privity with them, and the evidence shows not only that the claim of Myohl & Luken was assigned to Shryock & Company and the other parties named, before decree passed, but that it was entered to their use on December 27th, 1899, one month after the bill in that case was filed. Therefore if Myohl & Luken would be concluded by the decree in that case, their assignees must be equally concluded, and Kaufman & Company, and the Mantel and Tile Company were themselves parties to the former suit.

Whether the precise question of ownership presented in ⁶²⁴ this case was expressly decided in the former case, or whether it must be held to have been decided by necessary implication, as essential to the rendition of the decree, must be determined from the requirements in this respect of the statute' relating to mechanics’ liens, and from the proceedings thereunder in the former case. Sec. 19 of Art. 63 of the Code, prescribing what shall be set forth in the claim which must be recorded in the Mechanics’ Lien Docket, requires the name of “the owner or the reputed owner of the building,” to be stated, the requirement being in the alternative, and the right, consequently, being the right to use either or both designations, as prudence may suggest. In Real Estate Co. v. Phillips, 90 Md. 515 , the lien claim recorded described the B. & O. R. R. Co. as owner, and one Johns as contractor or builder, and it was sought to amend by charging that Johns and one Lechler were equitable owners. This amendment was allowed, the Court saying: “Can it be possible, the statute itself having given the lienor the right to use, either the name of the owner or the name of the reputed owner, that he should, especially in a Court of equity, and under the provisions of a statute remedial in its nature, be punished by a forfeiture of his claim, because, and only because, he has used the latter instead of the former ?” It is true that sec. 11 of Art. 63, which provides for notice to the owner or his agent of the intention to claim a lien, where the contract for work or materials shall have been made with any person except the owner of the lot or his agent, mentions only the owner or his agent, and does not in terms mention the reputed owner, but that section must be construed in connection with sec. 19, and so construing them, it cannot be that a recorded lien claim which used one of these terms could .be defeated, because in the notice to the owner, the other alternative term was used.

The broad alternative right given by section 19 cannot be