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Reports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 5) online

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in the ground and the house begun upon it, shall have been
changed subsequently, and passed through twenty or more
different hands. Neither is it easy to conceive, how a change
404



4pHZl%l*36.] OF PENNSYLVANIA. 307

[Pennock v. Hoover and Myers.]

made in the plan of the house, after it has been commenced,
by enlarging or contracting, or in any other respect changing
the plan of it, as long as the original design of its character
is retained, can with propriety be said to change or give a new
commencement to the building of it. And the act of assem-
bly *of 1806, certainly contains nothing, which in
the slightest degree militates against what I think
may be safely considered the universal understanding as to
what constitutes the commencement of the building of a
house ; and that is the first labour done on the ground, which
is made the foundation of the building, and to form part of
the work suitable and necessary for its construction. Indeed
the act seems to require this construction, in order to carry
into eifect the intention of the legislature, which is the main
thing to be attended to in expounding it. That this construc-
tion is the most favourable for those who shall furnish mate-
rials, and perform work, in the erection of houses, for whose
security and advantage, the act was exclusively designed, can
admit of no doubt : for, they thereby gain a preference over
all other liens, of posterior date to the commencement of the
building, although prior to the time of furnishing the mate-
rials, or even contracting for them, and of performing the
work. The words of the act in relation to this point, are,
" all, and every dwelling-house and other building, &c., shall
be subject to the payment of the .debts contracted for, or by
reason of any work done, or materials found and provided,
by any brickmaker, bricklayer, stonecutter, mason, lime
merchant, carpenter, painter and glazier, ironmonger, black-
smith, plasterer, and lumber merchant, or any other person or
persons, employed in furnishing materials for, or in the erecting
and constructing such house or building, before any other lien,
which originated subsequent to the commencement of the said
house, or other building." This preference can only be lost
through the neglect of the party, or a determination on his
part not to avail himself of it. If he neglect or will not in-
stitute an action for the recovery of his claim, or otherwise
file the claim itself in the protbonotary's oflice of the county,
within six months after performing the work, or furnishing

405



308 SUPREME COURT [Philadelphia.

[Pennock r. Hoover and Myers.]

the materials, it will cease to exist, according to a provision
contained in the act, in two years from the commencement of
the building, so that if any loss shall accrue to him, from not
having instituted his suit or filed his claim within the six
months, as required by the act, he may be said to have occa-
sioned it himself, and the maxim volenti non ft iwjuria will
apply.

The next question arising, out of the exception, is, can the
same debt, contracted for, or by reason of any work done, or
materials found, and provided by any brickmaker, bricklayer,
stone-cutter, mason, lime merchant, carpenter, painter, or
glazier, ironmonger, blacksmith, plasterer, and lumber mer-
chant, or any other person, or peisons employed in furnishing
materials for, or in the erecting and constructing of two or more
dwelling-houses, or other buildings, adjoining to each other,
and belonging to the same person, become a lien under the act
of assembly already mentioned, and its supplement of the 28th
of March. 1808, against all such houses or buildings? This
question is left undecided by the case of Gorgas v. Douglass,
6 Serg. & Rawle, 512. The court in that case only decided,
r .. *that the act of 1806, did not authorize a joint claim
' to be filed, against three adjoining houses, belonging
to different persons, for materials furnished, for the building
of them. Chief Justice Tilghman, who delivered the opinion
of the court, says, " we are not to decide on this occasion what
would be the law, if one man shall put up several houses, all
his own property, at one time. The case is of three houses
owned by three persons." And again he repeats, " I give no
opinion on the case of several houses owned by one person."

Although in drawing up the act of 1806, grammatical form
does not appear to have been strictly attended to, and it may
be that the words employed in the beginning of the first sec-
tion, would rather seem to indicate an intention that each house
or building should only be liable for such work as was done in
the construction of it, and for such materials as were either spe-
cifically furnished for the building of it, or otherwise actually
used for that purpose, yet I am inclined to believe that the in-
tention of the legislature when collected from the whole of the

406



April U, 1835.] OF PENNSYLVANIA. 309

[Pennock v. Hoover and Myers.]

act of 1806, aud its supplement of 1808, was, to give the party
who furnished materials generally, for the construction of two
or more houses belonging to the same owner, without knowing
how much of them was intended for each particular house, or
who performed labour in the construction of them under one
entire contract generally, a joint lieu upon all the houses ac-
cording to the full extent of the contract.

The effect of the opposite construction, which is contended
for in this case by the judgment creditors, would be, that
whenever a material man makes an entire contract to furnish
the same owner with all the materials necessary to construct
two or more houses, for a certain sum of money, or at certain
rates, or a mechanic agrees for a gross sum of money to do all
the work necessary for the construction of them, neither would
have a lien upon the houses, or any of them, as a security for
the payment of his claim after the materials shall have been
found and the work done. For having made an express con-
tract, each party must abide by it ; and if the material man or
the mechanic in such case, bring a suit within the six months
after having furnished the materials or done the work, it is clear,
that having made but one contract under which he was to be
paid a gross sum of money upon the delivery of the materials
or performance of the work, he can only sustain one action in
which he can obtain but one judgment, which must be for the
whole amount of his claim ; or if instead of bringing an action
to perpetuate his lien against the houses, he files his claim in
the prothonotary's office within the six months, he must still
have regard to the terms of his contract, which makes his
claim entire and incapable of division. He can therefore file
but one claim, which must be for the whole amount of it
against all the houses jointly, otherwise his contract would not
support or correspond with the claim filed, which would be an
insuperable objection to his recovering in a writ of scire facias
*sued out on it, according to the principle laid down
in Gorgas v. Douglass, 6 Serg. & E-awle, 521-2. It
necessarily results then in this, that the lien under the acts of
1806 and 1808, must be joint upon all the houses in such case,
or otherwise there can be no lien at all. Against such a lien

407



310 SUPREME COURT [Philadelphia,

[Pennock . Hoover and Myere.]

being created by these acts, it is contended first, that it is con-
trary to a strict grammatical construction of them. And
again, that great inconvenience as well as injury would neces-
sarily arise to the owner of the houses, who might thereby be
precluded from selling any one or more of them without he
could obtain a sum sufficient to discharge the whole amount of
the lieu. Whereas, if each house or building is made liable
only for the proper expense of its construction, the owner may
often have it in his power to sell the whole number consecu-
tively for a much larger sum of money than the amount of
the liens upon all; or to sell a part for a sum sufficient to dis-
charge the liens upon all, and to retain the residue; but if he
be compelled to wait until he can sell at once as much of the
property as will be sufficient to satisfy the aggregate amount
of the liens, he may not happen to meet with a purchaser or
purchasers at the same time who are willing to buy so largely,
and finally he may have it sold for him, or otherwise be com-
pelled to sell it himself at a great sacrifice. Doubtless such
inconvenience may occasionally take place ; but the owner of
ground who wishes to have houses or other buildings put upon
it, has it in his power if he chooses to guard against such in-
convenience in making his contracts for materials and labour
to be employed in the construction of his houses. It is only
necessary for him to make a separate contract for the building
of each house, or to introduce a clause into a contract for the
whole, that each house shall be charged for separately and
liable only for the expenses of its construction, and the lien
under the act will follow the nature of the contract. But
where the owner is 'induced to avoid this course because he
discovers that he can obtain materials and labour for building
his houses at much less price by making an entire contract for
the whole, than he could by making a contract for each house
separately, why shall he not be permitted to judge for himself
in this particular and to act accordingly ? It is plain that it
was not the intention of the legislature to interfere in the least
with the exercise of such a right. And although it is possible
that a man may in some instances err in judging for himself in
snch a case, yet in most cases, if not in all, it will be found
408



April 16, 1835.] OF PENNSYLVANIA. 310

[Pennock t;. Hoover and Myers.]

more safe to leave it to himself to judge of; because it must
always depend upon circumstances best known to himself,
whether one contract for the whole or a separate contract for
each house will be most likely to promote his interest the
best.

The objection that a joint lien is in opposition to the gram-
matical construction of the act is perhaps not very clear ; but
even if it were, it ought not to prevail where it would militate
against the meaning and intention of the legislature, as col-
lected from the whole *of the act, and against that
construction which gives to every word, clause, and *
sentence, a pertinent and useful effect, instead of rendering
some of them inoperative. It is said, that because the act
declares that "every dwelling-house or other building (thus
using the singular number) shall be subject to the payment of
the debts contracted" for the building of it, the lien created
by the act is for the expense of building it alone and not for
that of others ; and for the same reason the expense of it with
that of others cannot become a joint lien against the whole,
although it be but one debt growing out of one entire contract
made for building all the houses togethe'r. This alone perhaps
in almost all cases without other words or expressions being
used, would be deemed insufficient to denote severalty, and at
the same time to exclude plurality. For even in the con-
struction of penal statutes, where the rule is, that they shall
be taken strictly, the use of words in the singular or plural
number, is sufficient to embrace objects indiscriminately either
in the plural or singular number. As if it be enacted, that
he who steals a horse shall not have the benefit of clergy ; it
could not be pretended, that if he at the same time stole more
than one horse, his offence would not come within the act. So
the burning of a dwelling-house has been always held to come
within the provisions of 23 Hen. 8, cap. 1, although the plural
"dwelling-houses" are the words used in that statute. 2
Hale, P. C. 365. But the meaning of the legislature is the
first and great object to be sought after in expounding their
acts ; and where the words employed are dubious, the most
universal and effectual way of getting at it, is by considering

409



311 SUPREME COURT [Philadelphia,

[Pennock t. Hoover and Myers.]

the reason and spirit of the act, or the cause which moved the
legislature to pass it. 1 Bl. Com. 61. Observing this rule,
in connection with one or two others, which require the sub-
ject-matter and the words of the act throughout to be par-
ticularly attended to, we may arrive at a pretty correct con-
clusion as to what it was that the legislature intended. It is
obvious, that the reason of passing the act of 1806 was to
secure, as far as practicable, to material men and mechanics,
payment for materials furnished and labour performed by them
respectively in the construction of dwelling-houses and other
buildings, by making the houses and other buildings subject to
the payment of the debts thus contracted, and creating the
same a lien upon the property until paid. Now it is well
known to every one conversant with this subject, and we must
take it for granted, that it was known also to the legislature
at the time that they passed the act, that material men and
mechanics engaged in putting up houses in the city and county
of Philadelphia, had long before that been in the l.abit of
making with the owner of the ground a single contract to
furnish materials sufficient for the building of several adjoining
houses, in consideration of a certain sum of money or certain
prices for the materials, according to their nature and the
quantity delivered, to be paid for the same, and a like contract
r ion *for doing the work thereof. And it is certainly not
' unreasonable to suppose that inability to pay occurred
at least as often, if not more frequently, in such cases, and to a
much greater amount than in cases of contracts for the build-
ing of a single house only, and that the remedy provided by
the act must have been intended by the legislature to extend
to the greater evil as well as the less. If the legislature,
knowing that contracts by the same person to deliver mate-
rials sufficient for the building of several adjoining houses,
belonging to the same owner, or to do the work thereof, were
common, had intended to exclude them from the operation of
the act in favour of the material men and the mechanics, and
that debts arising under such contracts should not become liens
upon the houses for which the materials were found, and upon
which the labour was performed, is it not reasonable to believe

410



April 16, 1835.] OF PENNSYLVANIA. 312

[Pennock e. Hoover and Myers.]

that they would have employed terms very different from those
used ? How is it possible with such an intention that they
could have directed as they have done, in the close of the
second section of the act of 1808, which is in these words,
"provided, that no judgment rendered in any scire facias shall
warrant the issuing an execution, except against the building
or buildings upon which the lien existed as aforesaid." Thus
showing, by necessary and irresistible implication, that the
legislature were of opinion, that under the provisions of the
acts of 1806 and 1808, a claim might exist and be filed as a
lien upon more buildings than one, upon which a single writ
of sdre facias might be sued out, one judgment only obtained,
upon which an execution might be issued against all the build-
ings upon which the lien existed ; but lest it might be thought
that an execution could be issued upon such judgment against
other buildings than those upon which the lien existed, they
thought proper thus expressly to prohibit it. It is said, how-
ever, that this provision is contained in a proviso, and there-
fore ought not to have an influence upon the enacting parts of
the acts. But in The Attorney-General v. The Governor and
Company of Chelsea Water Works, it was held, that where the
proviso of an act of parliament was directly repugnant to the
purview, the proviso should stand and be a repeal of the pur-
view, as it spoke the last intention of the makers. Fitzgibbon,
Eep. 195.

Seeing then that it was a common practice with material
men and mechanics, before the passage of the act of 1806, to
make one entire contract with the owner of the ground to
furnish materials for, and to perform the work of building two
or more houses for a certain sum of money, or at fixed rates,
and it occasionally happened that their employer after they
had furnished the materials and performed the work, was un-
able to pay them, and his property, during the interim, in-
cluding the houses they aided him in building, had become
incumbered beyond its value, it may be very rationally and
fairly inferred that such cases formed at least a part of the
mischief that was intended to be remedied by the passage of

411



313 SUPREME COURT [Philadelphia,

[Pennock v. Hoover and Myers.]

tne ac * s *' n < l uest ' OD 5 ant ^ being also inclined to think
that the words and various expressions of the two acts
when viewed and taken all together, embrace and provide for
such cases, I am necessarily brought to the conclusion, that the
material man who furnishes at the request of the owner, mate-
rials for the building of two or more houses generally, withou-t
any special contract, or under a contract to furnish whatever
may be necessary to complete the whole number at a fixed
sum, or according to certain rates, or the mechanic who in like
manner, performs work in putting up the houses, acquires a
joint lien for the amount of the materials found or the work
performed upon all the houses. That such has been the opinion
of the most eminent counsel in the state, may be fairly in-
ferred from Knorr v. Elliott, 5 Serg. & Rawle, 49, in which
Mr. Binney appeared for the plaintiff, and Mr. Chauncey for
the defendant. There is no statement of the case given, ex-
cept what is contained in the opinion of the court, delivered
by the late Chief Justice ; who says, " the plaintiff obtained a
lien on certain houses now belonging to the defendants, for
materials furnished by him for the building of the said houses.
The plaintiff's claim was filed in the office," &c. The claim
and the lien are both spoken of in the singular number, and
the houses in the plural ; so that it is manifest there was but
one claim and one lien, which was admitted to have had an
existence at one time upon several houses under the operation
of the act of 1806, but was opposed then on the ground that
as no scire facias had been sued out upon it within five years
from the time it was filed in the prothonotary's office, the lien
was extinguished by the act of the 4th of April, 1798, which
limits the liens of judgments to five years unless revived by
scire facias.

. So I also think, that where the lumber merchant furnishes
materials for, or the mechanic does work, in the construction
of two or more contiguous houses, belonging to the same per-
son, under a general request, without any specific contract for
each house separately, that he may under the acts of assembly,
either file his claim for the amount against all the houses jointly,
or he may apportion it among them according to the value or
412



April 16, 1835.] OF PENNSYLVANIA. 313

[PennocK v. Hoover and Myere.

price of the materials furnished or the work done to each, and
file his claim accordingly against each house separately, and
thus continue his lien in either form.

There being nothing then, as 1 conceive, in the acts of as-
sembly, which restrains the parties from including in the same
contract, materials for, and the work of as many contiguous
houses as they please, it would seem to follow that the nature
and terms of it, together with the work done under it, ought
to regulate the operation and extent of the lien. Hence it
would extend itself to all the houses or buildings actually com-
menced, for which the materials were furnished or work done
under the same contract, and would become a joint lieu for the
whole amount of the debt, commencing on each house with the
commencement of the building thereof. *This ap-
pears to be not only the most obvious as well as safe
and certain rule or guide, by which the nature and the extent
of the liens of material men and mechanics may be deter-
mined, but the best suited to give to those persons, that degree
of security for the payment of their respective debts, which
was intended by the legislature. In its operation and effect, it
may be fairly likened to the lien of a mortgage, given to secure
the payment of money borrowed, upon a number of different
tracts of land, say eighteen in all, lying in as many different
counties of the state. The lien under it would commence, and
the whole amount of the debt become a charge upon each tract
from the date of the recording of the mortgage in the county
in which each tract was situated ; and as it would scarcely be
practicable to have the mortgage recorded in any two of the
counties on the same day, the date of its lien on each tract of
land would vary accordingly, but as soon as recorded in all the
counties, the mortgage debt would become a joint lien upon all
the eighteen tracts of land embraced in the mortgage. And if
in such case afterwards, while other liens existed on the mort-
gaged lands, some of prior, some of even, and others of subse-
quent date to that of the mortgage lien, a judicial sale were to
be made of all the land's under a proceeding had upon the
mortgage for that purpose, and the moneys arising therefrom
prove insufficient to pay off all the liens, the rule for appropri-

413



314 SUPREME COURT [Philadelphia,

[Pennock t. Hoover and Myers.]

ating it in such case according to seniority of lien could not
well be misapprehended as it must be familiar to all.

The next question raised by the exceptions to the report of
the auditor is, whether under the acts of 1806 and 1808, the
ground upon which the houses are built, can be divided and
apportioned among them so as to allow to each only such quan-
tity of ground as is usually occupied with, and necessary for
the enjoyment of houses in a similar situation of like dimensions,
and built upon the same plan? Upon this point I consider
the opinion of the auditor correct, and in perfect accordance
with what appears to me to be a reasonable interpretation of
the acts of assembly. Against his opinion it has been argued,
that as the whole of the ground formed the subject of but one
purchase, and consisted only of one parcel, without any subse-
quent actual division being made of it by the purchaser, it was
not competent for the auditor to make a division of it, or of
the money arising from the sale of it. Now in respect to this,
it may be observed, that by a literal construction of the act of
1806, it may be made a question, whether the lien can be ex-
tended beyond the ground actually covered by the house or
building ; because by the words of the act, it is the house or
building that is made subject to the payment of the debt, and
no mention whatever is made even of the land or ground upon
which it stands. It is, therefore, only by a liberal, or perhaps
more properly speaking, a reasonable construction, that the lien
_ created under this act can *be made to embrace any
' land not covered by the buildings. And although it
may be necessary, in order to carry into effect, what seems to
have been the intention of the legislature as manifested
throughout the act, to extend the lien to land beyond what
may be covered by the buildings, yet there must be some rea-
sonable limit in this respect; and here it appears to me that
the purpose of the legislature will be fully satisfied by extend-
ing the lien beyond the ground covered by the buildings, to as
much more as may be necessary for the convenient occupation
and enjoyment of them according to the intention and design
of the owner at the time of their commencement. This would
seem to be giving to the party all the security that was intended
414



4pn716,1835.] OF PENNSYLVANIA. 315

[Pennock v. Hoover and Myers.]

by the act ; and anything short of this would, perhaps, in most
instances, render it very ineffectual.

In this case the auditor has made a division of the ground,
allotting to each house not only what would seem to be as
much as is usually occupied as a curtilage to such houses placed
in a similar situation of the county or city of Philadephia, but
all that the owner of the houses had intended should be used as
appurtenant thereto, according to his plan of improvement as
indicated by the work done upon the ground itself. In this I



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 5) → online text (page 37 of 46)