Wells v. Canton Co.

Eccleston, J., delivered the opinion of this court. Under the decree in the case of Samuel Jones, Jr., against R. B. Hancock and Thos. W. Mann, et al., the trustee sold the factory of Hancock and Mann, known as their Adamantine Candle Factory, for the sum of $20,500, on the 15th of February 1847. The sale included the lot, buildings, and the machinery in and about the premises, and was finally ratified on the 14th of June 1847.

The claims on which the decree was passed consisted of three mortgages, given by Plan-cock and Mann to Dawson and Norwood, which afterwards passed into the hands of Samuel' Jones, Jr. The first was dated and acknowledged the 31st of July 1845, and recorded the 10th of June 1846. The second was dated and acknowledged on the 11th of April 1846, and recorded the 16th June following. The third -was executed the 16th of June 1846, and recorded the next day. In consequence of the second mortgage not having been recorded within the time prescribed for transfers of personal property, the- last was executed for the purpose of conveying all the property included in the second deed, and all other personal property of every description belonging to Hancock and Mann, at or about the mortgaged premises.

The two first conveyances included all the real estate connected with the factory, and likewise all the machinery and apparatus erected on the lot, or used or connected with the factory. Part of the machinery in this establishment the appellants put up, on account of which they filed, in Baltimore county court, their claim under the lien laws, on the 21st of August 1846, and on the same day had a scire facias issued thereon. The making and putting up this machinery was completed on or about the 18th June 1846, the work having been commenced on the 7th of April preceding. The claim of the appellants was filed in the chancery suit, ²⁴¹ on the 26th March 1847, under the agreement of counsel that it should be so filed and be considered as if the proceeding had not been instituted in Baltimore county court.

Also that no issue would be required to prove any fact connected with the claim, but the claim to be sustained in the usual way by affidavit. The costs taxed to follow the claim, and the suit in the county court to be off. In his report, the auditor refuses to allow this claim, but out of the proceeds of sale he applied $9070.80 to the payment of a vendor’s lien, due to the Canton Company of Baltimore, and the balance, after deducting costs and expenses, he appropriated to William Winn and James Ross, trustees and assignees of Samuel Jones, Jr., towards the payment of the mortgage debt. To which report the appellants filed exceptions, but the chancellor overruled them, and ratified the report.

The acts of Assembly which have been referred to as regulating the matter in controversy are, 1838, ch. 205,1845, ch. 176, and 1845, eh. 287. The first of these laws relates to buildings, and does not include machines. The 9th section of which, and the 1st section of the second act, give preference to liens upon buildings, for work and materials, over all liens or incumbrances, attaching subsequently to the commencement of the buildings. In the 4th section of the second act it is declared, “That every machine hereafter to be erected, constructed or repaired within the city of Baltimore, shall be subject to a lien, in like manner as buildings are made subject under the provisions of this and the original act to which this is a supplement.” If, as we have seen, the mechanic’s lien has preference over any other incumbrance attaching upon a building subsequent to its commencement, it necessarily follows that the lien of the mechanic attaches as soon as the house is begun.

And inasmuch as machines are made subject to hens, “in like manner as buildings are,” the claim of a mechanic upon a machine must commence as soon as he begins to pul up the machine. In this instance there i" no doubt of the machinery having ²⁴² been commenced prior to the 16th of June 1846, and therefore the claim of the appellants has preference over the mortgage of that date. The uncontradicted evidence in the cause, and the admissions of counsel on both sides, clearly establishing the fact that this machinery was no fixture but movable, and therefore personal property, constituting no part of the factory building. And being personalty it was not affected by either the first or second mortgage, neither of them having been recorded in time to pass personal property, and the first bearing date long before the machinery was commenced.

But admitting the appellants had a lien upon the machinery put up by them, still it is insisted that they cannot claim payment out of the proceeds of sale, notwithstanding the machinery was