
    Perry v. Board of Missions of the P. E. Church.
    
    
      (Court of Appeals,
    
    
      Filed April 13, 1886.)
    
    Liens—Equitable lien will be given where plamtiet’s rights can bb
    SECURED IN NO OTHER WAV.
    Plaintiff, as chairman of a committee appointed by St. Peter’s Episcopal Church, obtained subscriptions for purchasing a residence for the bishop of Albany, which action had been authorized by a convention of the diocese, and, with the advice of the bishop and consent of the'diocesan committee, he bought property on which there was a $5,000 mortgage, and had it conveyed to the trustees of the episcopal fund. He then advanced money necessary to pay interest on the mortgage, to make improvements, alterations, etc., which action was reported to and accepted by the diocesan committee, which directed the property to be conveyed to the defendant. Defendant accepted the property, and authorized its president, the bishop, to mortgage it for $8,000, “to pay the mortgage and the expenses of the repairs and improvements, ” which was done. Plaintiff continued to advance moneys until the necessary repairs were completed, when defendant refused to reimburse him, and he brought this action for equitable relief, asking that a lien equivalent to a mortgage, be placed upon the property, and that he be allowed to foreclose it to satisfy the same, which was granted by the referee. Held, no error; that this is one of the cases where equity will give a right equivalent to a lien, as in no other way can the rights of plaintiff be secured.
    Appeal from order of general term supreme court, third department, affirming judgment for plaintiff on report of referee
    
      
      E. Countryman, for appellant.
    
      Hamilton Harris, for respondent.
    
      
       Affirming 81 Hun, 535, mem.
      
    
   Dakforth, J.

Upon trial before a referee, the plaintiff' has been declared entitled to a lien in the nature of a mortgage upon certain premises on Elk street, in the city of Albany, for a balance due him for advances made for improvements and repairs thereon, and for interest on an existing mortgage amounting to the sum of $4,677.38, besides costs, ana, in case the same be not paid within a certain time, that said real estate be sold in the same manner as sales are made upon mortgage foreclosure, and of the proceeds of such sale the plaintiff be paid the amount of said lien, with interest as aforesaid, together with his costs, and disbursements. Upon appeal to the general term, the. judgment upon this report was affirmed.

Some objections were made by the defendant to the admission of certain testimony, but it is not now contended that the facts found by the referee are not warranted by the evidence, or that they were not within the issues raised by the pleadings. The contention is against the referee’s conclusion of law. It appears by his report that in September, 1869, the Eight Reverend William Croswell Doane was-bishop of Albany; and at that time, by the action of the-convention of the Protestant Episcopal church in that diocese, a committee was appointed to take such steps as they might deem expedient for procuring a residence for the bishop; that in February, 1870, the vestry of St. "Peter’s-church, in that city, appointed a committee, of which the-plaintiff was chairman, to solicit subscriptions for the above purpose, and in that character he received moneys from various persons, in all to the amount of $12,825, and in. June, 1870, under the advice of the bishop, and with the consent of the diocesan committee, he bought the premises above referred to at the price of $18,000, (of which $5,000-was in a then existing mortgage.) He paid the residue, and upon like consent caused the property to be conveyed, subject to the mortgage, to a corporation called “The Trustees of the Episcopal Fund of the Diocese of Albany;” that-thereupon “the plaintiff, at the request of the bishop, commenced making various improvements, alterations, and repairs in the dwelling upon the premises so purchased, all of which were necessary and proper to make it a suitable and convenient residence for Mm, and the plaintiff advanced the moneys required to pay the bills for such improvements- and repairs;” that at “the annual meeting of the diocesan convention, in September, 1870, the diocesan committee-made a report stating the manner in which the title was-taken, described the property, and referred to the repairs and improvements. This report was on motion accepted;” and at the same time the convention, with the consent of the trustees of the episcopal fund, directed them to transfer the title to said property to the defendant herein, “to be held and used for the support of the episcopate, and be a place of residence for the bishop of the diocese, and that the said board of missions be authorized and directed to make a bond and mortgage on the premises to secure the payment of the incumbrance thereon of $5,000, and also the payment of the sum advanced for the repairs and fitting up of the same for the episcopal residence;” intending thereby to provide for and cover all the expenditures incurred by plaintiff for the improvements and repairs then in progress, and contemplated and included as well the sums thereafter advanced as those which had then been actually paid. The defendant is a corporation having power, among other things, to take and hold property, used, or intended to be used, for “ diocesan institutions or purposes in the said diocese, and is subject to the directions and instructions which shall be given to it by the said convention. Laws 1870, chap. 13. At this time the repairs and improvements were in progress, and only the sum of $173.92 had then been advanced. by plaintiff in payment therefor. On the 20th of October, 1870, in accordance with the above directions, the trustees of the episcopal fund of the diocese of Albany conveyed the premises to defendant, in trust, as a residence for the bishop of Albany, and on the same day, at a regular meeting of the board, passed the following resolution:

“ Resolved, That this board do, in accordance with the direction of the convention, hereby accept the conveyance of the said premises, to be held in trust for the uses and purposes above mentioned; and, further, that the president of this board, the Bight Beverend William Oroswell Doane, S. T. D., bishop of Albany, be, and is hereby, in its name and behalf to execute and affix the corporate seal of this board to a bond and mortgage upon the said premises for a loan not to exceed eight thousand five hundred dollars, with interest, the proceeds of which shall be applied to the payment of the said existing mortgage of five thousand dollars thereon, and the said expenses of the said repairs and improvements. ”

And in pursuance of said resolution, on December 30, 1870, defendant, by its president aforesaid, executed and delivered to one Earl L. Stimson a bond with a mortgage upon the premises aforesaid, for the sum of $8,500, which sum was loaned and advanced to it by said Stimson, and was by it paid over to plaintiff, who paid out of the same the mortgage of $5,000, and the interest thereon, then unpaid, amounting in all to the sum of $5,227.47; and the same was cancelled of record, and the balance of said sum was credited and applied by plaintiff in his account for the advances made by him, as aforesaid, towards the purchase price of said premises, the expenses incident to the same, and for said improvements and repairs. Other facts are found which require no special mention, but which show that tne amount for which a lien was declared, was justly due for advances made under the circumstances above stated.

It is objected by the appellant that the plaintiff is not, by reason of any of these facts, entitled to an equitable lien upon the premises for the benefit of which they were made. We are of a different opinion. The principle upon which a court holds that a vendor who has not been paid is entitled to a lien on the land sold, is that it would be contrary to natural justice to allow a purchaser to retain an estate which he has not paid for, and it seems very clear that there is a like natural equity in favor of the plaintiff. It is true he did not sell the estate, but he added to it, and, by his expenditures upon it, fitted it for the purpose for which it was intended. A lien for the price of an estate sold, exists without any special agreement, and by virtue of a doctrine merely of a court of equity. Here there is a special agreement, and also a case to which the doctrine applies.

1. The special agreement. It may be found in the resolution of the convention of 1870, by which the defendant was required, in substance, to provide by bond and mortgage “for the payment of the sum advanced for the repairs and fitting up of the episcopal residence,”—the" one' in question. The learned counsel for the appellant seeks to limit this expression by the rules of grammar, and confine the security to the sum then or already advanced, to the exclusion of all advances subsequent thereto. We do not think, however, that the framers of the resolution selected the word for the purpose of marking either present or future time, but to denote a fact which might include various transactions requiring the expenditure of money by some person other than themselves, the whole, by whomsoever or whenever made, constituting “ the sum advanced ” in rendering the place fit and suitable as a residence for the bishop of the diocese. The resolution in question was in writing; it was entered in the journal of the convention; and the defendant was bound to conform to it. Chapter 13, Laws 1870, supra.

2. The plaintiff’s case is within the general doctrine of equity which gives a right equivalent to a hen when in no other way the rights of parties can be secured. The advances were directly for the benefit of the real estate. They were approved by the convention, by whose directions the title was conveyed to the defendant,but neither the convention nor the defendant have incurred any corporate Eability; and, while it may be said that the advances were made on the promise, or in the just and natural expectation tha:t a mortgage would be given, it is also true that they were made on the credit of the property, for the improvement of which they were expended. The repairs and improvements were permanently beneficial to it; made in good faith, with the knowledge and approbation of the parties interested, and accepted by them, not as a gratuity, but as services for which compensation should be given. The plaintiff’s right to remuneration is clear, and, unless the remedy sought for in this action is given, there will be a total failure of justice.

It would seem to follow that no error was committed By the referee in directing a sale of the property, and the application of the proceeds to the payment of the plaintiff’s claim. But the learned counsel for the appellant argues that, as the defendant’s relation to the property is that of a trustee, such enforcement of the Hen would destroy the trust, and so defeat the very object of the conveyance through which they derive title. The trust was for the habitation and use of the bishop of the diocese. It was accepted with notice that the improvements were necessary to fit the buildings for occupation, and had been begun under proper authority. It was the duty of the defendant to allow them to be finished, and it will be no violation of the conditions upon which the premises are held to subject them to a charge for the cost of the repairs, through which alone the purposes of the trust were accompfished. It might, with the same force, be urged that if the building should now be burned, the mechanic who might repair or reconstruct it could acquire no Hen, because enforcing it might diminish or even absorb the property. A statutory Hen would be no better than the plaintiff’s Hen in equity. The usual course of enforcing an equitable Hen is by a sale of the property to which it is attached, and we find nothing in this case to take it out of the general rule.

The appellant’s remaining point is a sweeping one, relating to various items of evidence of the bishop’s declarations, letters, and acts in connection with the purchase and repairs of the house. Under the circumstances disclosed in the record, they were properly received, either as acts of agency or part, of the transaction. We think the decision of the referee was warranted by the facts before him, and that the judgment appealed from should be affirmed.

A11 concur, except Bapallo, J., absent.  