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3 Parsons on Cont., 5th ed., 58 ; 8 Am. Encyc. of Law, 659,
note six, and cases there cited. Besides this, the conti-act
is executed, and so "the statute has no power over it."
3 Parsons on Cont., 5th ed., 58.

2. The appellants were guilty of " culpable negligence " in
making no inquiry as to the title, even if they had received
no notice that the appellee had paid half the purchase
money. 1 Pomeroy's Eq., § 612: Phillips on Mech. Liens,
§ 332 ; Wade on Notice, § 17. Taking then the two gi-eat
maxims of equity, "that other things being equal, priority
in time gives the better equity," and " that when there is
equal equity the law must prevail," we submit that we are
entitled to the benefit of both under the exact application
of these maxims as given in the leading works on equity
jurisprudence. "When a purchaser of property for a val-
uable consideration and without notice of a prior equitable
right to or interest in the same subject matter, obtains the
legal estate in addition to his equitable claim, he becomes
in general entitled to a priority both in equity and at law."
1 Pomeroy's Eq., § 417. "An unfiled mechanics' lien and
an unrecorded mortgage stand on the same footing. Both
are silent claims." Kneeland on Mech. Liens, §§ 139, 202;
Wing V. Carr^ 86 111., 347. There is nothing in the ap-
pellee's claim that conflicts with the just maintenance of our
registration system. When the mechanic or material man
does not take the trouble to look at the records, or even to find


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APRIL, 1890. 616

Soule V. Horlbnt.

out the owners of the premises on which he is to build, and
that too after his agent is notified of unpaid purchase
money, is it not directly within the spirit as well as letter of
the registry law to hold the document first recorded entitled
to the priority? In so far forth as the mechanics' lien re-
lates back to the commencement of the work it is itself in
conflict with the theory of registration. Nor are the ap-
pellee's claims unjust to the appellants. They were not
deceived by the appellee's negligence. On the other hand,
either their agent, Titus, neglected to inform them of the
unpaid purchase money, or, being informed, they paid no
heed to the information. They lived <Jn the spot and had
every opportunity for immediate information. The appellee
lived in another town. If each party was negligent as to
his inchoate lien, certainly the negligence of the appellants
was under all the circumstances far more gross and inex-
cusable. •

3. A vendor of real estate has a lien against all subse-
quent incumbrancers for the payment of the purchase money,
if they have notice. 2 Swift's Dig., 128 ; Watson v. WellSy
6 Conn., 468 ; Meigs v. Dimock^ 6 id., 468 ; Atwood v. Vin-
centy 17 id., 575 ; Chapman v. Beardsley^ 31 id., 115 ; Mid-
dletown Savings Bank v. FelloweSj 42 id., 36 ; Hall v. Hall^ 50
id., 104, and cases cited on p. 107. This lien has been
adopted in twenty-four states and has been engrafted in the
codes of several states within recent years. Perry on
Trusts, § 232, and note ; 3 Pomeroy's Eq., §1249; 26 Am.
Law Register, 393. " The lien," says Perry, (§ 232, supra),
"is founded in natural justice." "The principle," says
Chancellor Kent (4 Com., 12th ed., 152), "is founded in
natural equity." The reasoning of Justice Gray in Ahrend
V. Odiome, 118 Mass., 261-266, in opposition to the lien, is
pronounced by Mr. Pomeroy as " imperfect " and " unsatis-
factory," (3 Pomeroy's Eq., § 1280, note,) and the objection
of Mr. Pomeroy only goes to the question of registration,
which we have already discussed, so far as affecting this
case. " The lien of a vendor for the purchase money must
undoubtedly be considered as a settled principle of Ameri-


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616 APRIL, 1890.

Soule V. Hurlbut

can law, so far as this depends on the weight of authority."
1 Hilliard on Mortgages, 690. "It rests on the plain prin-
ciple of equity." Fisher's Law of Mortgages, § 203; Coots
on Mortgages, 227; Story Eq. Jur., §§ 1217, 1218, and
note 3. Whenever by an arrangement between the parties
a note for the purchase price is given by the grantee to a
third person instead of the grantor, such person is generally
held entitled to enforce the lien. 8 Poraeroy's Eq., § 1254,
note 3 ; 2 Washb. R. Prop., 96, § 17 ; Perkins v. Gibstm, 51
Miss., 699 ; Nichols v. Glover ^ 41 Ind., 24 ; Latham v. Sta-
ples, 46 id., 462 ; Campbell v. Roach^ 45 Ala., 667 ; Hamilton
V. GilheH, 2 Heisk., 680; Mitchell v. BuU, 45 Geo., 162;
Francis v. Wells^ 2 Col., 660. As to prior judgment credi-
tors, the mortgagee of the vendee has the same preference
as the mortagee of the vendor. Kaiser v. Lemheck^ 55 Iowa,
244, citing many cases. The notice to the agent of the ap-
pellants was sufficient. See cases ^before cited on notice,
and 2 Pomeroy's Eq., § 597 ; Wade on Notice, §§ 5, 17, 33 ;
Blatchley v. Osborne^ 33 Conn., 226 ; Blaisdell v. Stevens^ 16
Verm., 179; Stafford v. Ballou, 17 id., 329; Cambridge Val-
ley Bank v. Delano^ 48 id., 326 ; Williamson v. Brown^ 15 N.
York, 354 ; Ledos v. Kupfrian, 28 N. Jer. Eq., 161 ; Brinker-
hoff v. Vansciven^ 4 N. Jer. Ch., 251 ; Bavm v. Chrigsby^ 21
Cal., 176; Earshbarger v. Foreman, 81 111., 364. The lien
is not waived until the security is actually taken, although
there be an agreement to receive it. 2 Jones on Liens,
§ 1088 ; Jones v. Vantressy 23 Ind., 533 ; Dunlap v. Burnett,
5 Sm. & Marsh., 702.

4. Do we then claim a vendor's lien in this case as well
as an equitable lien under the original contract ? Not nec-
essarily. But we say that the knowledge of the unpaid
purchase money gave the appellants not only notice that
there was some lien on the property, but gave this notice
more directly and definitely if the vendor's lien exists to any
extent in Connecticut, and we have suggested that if adopted
at all we are justified in assuming that it will be carried to
its logical results.


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APRIL, 1890. 517

Soule 0. Hurlbut.

LooMis, J. This is a complaint to foreclose a mechanic's
lien for labor and materials furnished by the plaintiffs in the
erection of a barn on land owned jointly by Walter F. Hurl-
but and Hattie R. Hurlbut, his wife. The facts found by
the court are in substance as follows :

Walter F. Hurlbut and Ids wife purchased the premises
in question August 80th, 1886, and immediately went into
possession and continued to occupy the same until after
this suit was brought. In March, 1887, Mr. Hurlbut con-
tracted with the plaintiffs to build a barn on the premises.
They commenced work and furnished materials for the barn
April 2d, and completed it on the 16th day of April, 1887.
They placed their mechanics' lien thereon within sixty days
after the completion, on June 10th, 1887.

The mortgage deed held by the other defendant, Eias-
tus J. Hurlbut, to which it is sought to give priority to the
plaintiffs' lien, was not executed and recorded until June 2d,
1887, after the commencement of the services and the fur-
nishing of materials by the plaintiffs. This mortgage orig-
inated as follows: Walter F. Hurlbut and his wife on
August 30th, 1886, gave their note to Camp for $2,000, and
to secure the same gave him a mortgage of the premises,
which was then duly recorded. At the same time Erastus
J. Hurlbut, the father of Walter F., gave a joint note with
his son to Camp for $2,000, payable to him on the first day
of April, 1887. It was agreed between the father and son
and his wife that if the father should pay the note on the
first day of April the son and wife would give him their
note for $2,000 and secure the same by a mortgage of the
premises. The father, residing three or four miles out of
the village, on the 31st of March, 1887, sent by one Todd
the sum of $2,000 to his son to be paid over to Camp to take
up the note, and on the next day it was so paid.

The father sent the money expecting and believing that
his son and wife would make their note and mortgage in
pursuance of their agreement forthwith, and cause the mort-
gage to be duly recorded, as they resided next door to the
town clerk's office. But through the mistake or negligence


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618 APRIL, 1890.

Soale V. Hurlbut

of the son the mortgage was not given and recorded until
the 2d of June, 1887. The father in the meantime supposed
that all this had been done on the first day of April, 1887.

The court finds that the plaintiffs had no knowledge of
the above arrangement except as follows : About the time
one Titus, as agent of the plaintiffs, contracted to build the
barn, he inquired of Walter F. if the deeds of the premises
were made; and he replied that they were, and that his
father gave his note for $2,000.

The pleadings raised sundry issues affecting the validity
and extent of the lien, all of which were decided in favor of
the plaintiffs, except the claim that the lien attached to the
undivided interest of Hattle R. Hurlbut, the wife, in the
premises, which the court overruled. But the court found
that the plaintiffs' lien upon the undivided half of the prem-
ises owned by Walter F. Hui'lbut was subject to a mortgage
executed and recorded June 2d, 1887, in favor of the other
defendant, to whom the premises afterwards and before this
suit had been conveyed. The objection to the ruling of the
court exempting from the lien the undivided interest of
Hattie R. Hurlbut, although at first assigned for error, was
expressly waived by the counsel for the plaintiffs before this
court ; so that the sole question for our consideration now
is, whether there was error in holding that the mortgage of
Erastus J. Hurlbut was prior in right to the lien of the
plaintiffs upon the undivided half of the premises owned by
the defendant Walter F. Hurlbut.

The record shows that the plaintiffs' lien attached on the
second day of April, 1887, when they commenced furnishing
their labor and materials, and as the mortgage to which the
court gave priority was not executed till two months after
that date, the error of the court is manifest, unless the facts
found are sufficient to give an equitable existence to the
mortgage in question more than two months before it had
any legal existence.

The statute, (Gen. Statutes, § 3018,) explicitly declares
that the mechanics' lien "shall take precedence of any other


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APRIL, 1890. 619

Soule V. Hurlbut.

incumbrance originating after the commencement of such
services or the furnishing of such materials.'*

Ordinarily the question of priority can be easily and con-
clusively determined simply by comparing the date of the
commencement of the claim for materials or service with the
date when the other incumbrance was received for record in
the town clerk's office, and the owner of the mechanics' lien
has the same rights as any incumbrancer by mortgage would
have to rely on the state of the land records at the time as
conclusive in his favor. He must however act in good faith,
and have regard to facts of which at the time he has knowl-
edge affecting the rights of others, as well as to facts which
appear or fail to appear of record. So that facts existing in
his own mind not appearing of record, may in equity pre-
vent the state of the record from being conclusive as to his
rights of priority. And this brings us to consider the precise
claim of the defendants in the case under consideration.

It is found that on the 30th of August, 1886, at the time
Walter F. and his wife purchased the premises of one Camp
for the sum of four thousand dollars, they gave their note to
Camp for two thousand dollars, and secured it by a mort-
gage back of the premises purchased, and that for the bal-
ance Walter F. and his father Erastus J. Hurlbut gave their
joint note to Camp for two thousand dollars payable on the
first of April following, and it was then agreed between
Walter F. and wife and Erastus J. that if the latter paid the
note when due, then the former would give their note for the
same amount and secure it by a second mortgage of the prem-
ises, and that Erastus J. made the payment accordingly,
relying upon the agreement to give the mortgage, and he
supposed it had been so given on that day.

This it is claimed created in the father an equitable lien
or mortgage, commencing on the first of April, 1887, and
good against the lien of the plaintiffs commencing the next
day, provided it appears that the plaintiffs had knowledge
of the arrangement prior to the second day of April. We
accept this as embodying a true principle of law. But the
controlling question is, whether the plaintiffs had the requi-


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620 APRIL, 1890.

Soule V, Hnrlbut.

site knowledge to bring this case within the principle stated.
The only notice, actual or constructive, that is claimed is,
that about the time (March, 1887,) that the agent of the
plaintiffs contracted for the building in question, he inquired
of Walter F. if the deeds of the premises were made, and
he replied ''that they were, and his father gave his not« for
two thousand dollars." The sole point of inquiry was
whether the deeds had been given, which was answered in
the afiSrmative, and assured the plaintiffs' agent that the
person with whom he was about to make a building contract
owned the land, so that there would be security for the out-
lay the plaintiffs were asked to make. To show how he was
able to obtain the premises it was perhaps natural to add,
as he did in substance, that his father helped him; or to give
the language literally, "his father gave his note." This
might import either that the note was given to some third
party to raise money to pay for the property, or that it was
given directly to the vendor. But it gives no hint and raises
no suspicion that any such special contract between Walter
F. and his father had been made as is now relied upon. In
view of the obvious point of inquiry it would seem most nat-
ural for Walter F. to refer to the agreement with his father
affecting the title, if any such existed. So that the omission
might well operate to furnish confirmation that the title was
all right, instead of being doubtful in any respect. More-
over, the statement as made would seem even misleading as
to the existence of any such incumbrance, for its natural
effect would be to lead the mind of the inquirer away from
anything done as affecting the property to satisfy the father,
to something done to satisfy the vendor and induce him to
give the deed. But whatever weight such speculations may
have, we feel confident that the fact referred to falls far
short of notice, actual or constructive, of the existence of
any contract creating an equitable lien or mortgage in favor
of the father. In anticipation of such a result the counsel
for the defendants made the further claim that the fact re-
ferred to would at least show that the purchase money had
not been paid, and therefore it would amount to notice of


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APRIL, 1890. 621

Soule V. Hurlbut.

the existence of a vendor's lien. The notice to the plaintiffs*
agent referred to a transaction then about seven months
past, and of course indicated nothing as to any payments
made or as to the amount then due. But we prefer to waive
that and assume that if any vendor's lien could exist for the
benefit of the father the plaintiffs were put upon inquiry rel-
ative to its continued existence and relative to payments.

Could there be any such lien under the circumstances of
tliis case? If there be no such thing as a vendor's lien in
this state no further answer could be required. Up to this
time the doctrine has not been recognized, except in a way
to leave the question doubtful. It has been somewhat dis-
cussed in several cases, but finding its determination unne-
cessary for the disposal of any of the cases the court has
hitherto avoided a decision of the question. Watson v. Wells.

5 Conn., 468; Dean v. Dean, 6 Conn., 287 ; Meigs v. Dimock,

6 Conn., 458; Atwood v. VincenU 17 Conn., 676; Chapman
V. Beardsley, 31 Conn., 115; Rail v. Sail, 60 Conn., 104.

The circumstances of the present case will allow the court
consistently and with propriety to avoid any decision of the
question again. There are several other independent an-
swers to this claim. In the court below the only claim of a
lien in favor of the father was founded solely upon the spe-
cial agreement that he was to have a mortgage, and such
claim seems to us utterly inconsistent with the claim of a
vendor's lien. But if not inconsistent, and if we apply to
this case the doctrine of a vendor's lien as it obtains gener-
ally in other jurisdictions, it will be seen that there can be
no such lien in this case, for there is no vendor here to claim
and enforce it, and none of the defendants show or claim
any authority from or under the vendor to claim the lien.
It is very generally held by the courts of other states that a
vendor's lien is personal and not assignable, and that there
can be no subrogation. Such we understand to be in sub-
stance the doctrine as held by the courts of Arkansas,
California, Georgia, Illinois, Iowa, Maryland, Mississippi,
Missouri, North Carolina, New York, Ohio and Tennessee.
But in the case at bar there was not even a pretense of any


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522 APRIL, 1890.

City of Waterbury v, Schmitz. "

assignment from the vendor. Moreover the vendor hin^self
had no lien that he could assign, for in those states wis^ere
the lien is recognised it is genei'ally considered well settr^d
that the taking of security beyond that of the vendee, wheth-
er personal, or by way of mortgage upon the same or other
real estate, or by pledge or mortgage of personal estate,
either for the whole or part of the purchase money, will or-
dinarily be considered suflBcient evidence of a waiver of the
lien. Manly v. Slason^ 21 Verm., 277 ; 2 Swift's Digest,
top p. 128; 3 Parsons on Contracts, 278; 1 Jones on
Mortgages, 2d ed., §§ 207, 213; 2 Story's Eq. Jur., § 1226,
note I; Schnehly v. Ragan^ 7 Gill & Johns., 120; Note to
same case, 28 Am. Dec, 195; Cupper v. SpoUeswood^ 1
Saund., 21.

There was eiTor in holding that the mortgage or lien in
favor of Erastus J. Hurlbut was prior in right to the lien of
the plaintiffs, and to that extent the judgment is reversed.

In this opinion the other judges concurred.

City of Watbbbxtry vs. William Schmitz.

New Haven & Fairfield Cos., Jan. T., 189a Axdbbws, C. J., Cabpkn-
TER, LooMis, ToBBANCB and Prentice, Js.

A city cliarter prescribed in detail the proceedings to be had in making an
assessment on property owners for l>enefit8 from public improvements,
and provided that *' all assessments of benefits made under the provi-
sions of this act shall, wlien completed, become a debt due to said city
from the owner or owners of property specially benefited, and shall
remain a lien upon such property,'' and that the lien " may be fore-
closed in the same manner as if it were a mortgage thereon in favor of
said city." In a complaint for tlie foreclosure of such a lien it is suffi-
cient to aver generally that all the requirements of the chatter were
complied with, without averring in detail a performance of them.

The effect of the provision that the assessment should become a debt, ii» tc
place it upon the same footing for remedial purposes with other debts

[Argued February 10th— decided March 17th, 1890.J


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APRIL, 1890. 623

City of Waterbury v. Schmitz.

Suit for the foreclosure of a lien for an assessment of
benefits from the construction of a sewer; brought to the
District Court of Waterbury. Demurrer to complaint;
demurrer sustained, (^BradstreeU J^O *^^ appeal by the
plaintiff. The case is sufficiently stated in the opinion.

O: E. Terry^ for the appellant.

C. Q, Bootj for the appellee.

Caepentee, J. This is a suit to foreclose a lien for
benefits assessed against the defendant for sewer improve-

The firat paragraph of the complaint alleges that "the
board of sewer commissioners of said city of Waterbury,
under and by authority of the charter and ordinances of
said city, did, on the 22d day of December, 1886, make an
assessment for se^er purposes in the sum of seventy-five
dollars and twenty-two cents upon the defendant by reason
of his owning certain lands fronting on Jeffrey Alley in
said city, to wit: (describing the land). Paragraph four
alleges another assessment of ninety-three dollars against
the defendant upon the same property in substantially the
same language.

The complaint is demurred to. The District Court of
Waterbury sustained the demurrer, and the plaintiff appealed.

The charter prescribes in detail the steps and proceedings
in making an assessment, and provides that "all assessments
of benefits, made under the provisions of this act, shall,
when completed, become a debt due to said city from the
owner or owners of property specially benefited by the pub-
lic work or improvement in view of which such assessments
were made, and shall remain a lien upon such property,
* * * and the lands, buildings or other property on which
any such lien may exist, may be foreclosed in the same manner
as if said lien were a mortgage thereon in favor of said city
to secure said debt, etc."

The difference between the parties is this : — the defend-


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624 APRIL, 1890.

City of Waterbury v. Schmitz.

ant contends that all the proceedings in constructing the
sewer and making the assessment should be alleged in the
complaint, while the plaintifif insists that a general aver-
ment that all the requirements of the charter were com-
plied with is sufficient. A debt evidenced by a note, bond
or judgment is sufficiently alleged by a general description
of it, and it is not necessary to allege the circumstances and
the acts of the parties leading to and ending iu its creation.
The effect of the charter making the assessment a debt
places it upon the same footing for remedial purposes with
other debts. The allegation that an assessment was made,
primd facie alleges the existence of an assessment and there-
fore of a debt. The question whether the allegation that the
assessment was made under and by authority of the charter
is in law an allegation that it was made according to the
provisions of the charter, is a question we do not consider,
asthe demurrer does not raise that question* Should the
allegation be denied a question may arise whether the
plaintiff may prove it by producing the record of the assess-
ment, or whether he must prove all the proceedings. In
actions for the recovery of debts generally, when the instru-
ment sued on is primd facie proof of the debt, the plaintiff
may introduce that and rest ; the defendant may then prove
any fact, if properly pleaded, which invalidates the debt or
disproves its existence.

In analogy to those cases perhaps it will be sufficient for
the plaintifif to prove the assessment by the record, rel3'iiig
upon the presumption that the requisite preceding steps
were regularly taken, and then leave it to the defendant to
show any defect or omission in those proceedings. On the
other hand the better view may be that it is incumbent on
the plaintiff to prove, what he has alleged generally, that all
the proceedings were according to the charter. In either
case the defendant's rights are preserved, and we cannot see
that he will suffer any inconvenience of which he can legally

Again. The charter says the premises " may be foreclosed
in the same manner as if said lien were a mortgage." That


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APRIL, 1890. 626

Citj of Watcrbury o. Schmitz.

in efifect provides that not only the nature and form of the
remedy shall be the same as in the foreclosure of mortgages,
but that the pleadings and the form and effect of the judg-
ment shall be the same. In a complaint to foreclose a mort-
gage it is sufficient to describe the debt in general terms.
Under the charter no greater strictness is required in this
case. Durhin v. Platto^ 47 Wis., 484 ; ManBeau v. Hdwarda^
63 Wis., 554. It is true that in those cases the statute in
terms provided that the pleadings should be the same; but
we think this charter has the same meaning.

The defendant cites Moore v. Cline^ 61 Ind., 113, and Over-
shiner v. JoneSy 66 Ind., 452. In that state a statute authorizes
an assessment, and gives to the contractor, who does the work

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 58 → online text (page 47 of 60)