
    John M. Kerrigan, Appellant, v. Frederick W. Fielding and Others, Respondents.
    
      A deed given to secure claims is a mortgage — designation in a mechanics lien Of the grantor as owner of the property — waiver effected by the giving of a bond to discharge the liens.
    
    Where a deed absolute in form is executed as security for claims against the grantor, .owned and represented by the grantee, the title still remains in the grantor, and a notice of lien, filed against the property after the execution , of the conveyance, properly designates the grantor as the owner.
    
      It seems, that the filing by the lienor of a new notice of lien in which he designates the grantee as the owner, does not impair his rights under the first notice of lien; if it were otherwise, the objection is not available to the parties to a bond, given to discharge the liens, conditioned for the payment by the grantee of “ any j udgment that may be rendered against such property for the enforcement of said liens or either of them.”
    The execution of the bond operates as a waiver by the parties thereto of the claim that, because the incumbrances exceeded the value of the property, the grantor had no interest in the property.
    'Appeal by the plaintiff, John M. Kerrigan, from so much of a judgment of the Supreme Court in favor of the defendants, Frederick W. Fielding and others, entered in the office of the clerk of the county of Kings on the 6th day of' April, 1899, lipón the decision of the court, rendered after a trial at the Kings County Special Term, as dismissed his complaint as against the defendants, Fielding, Corrigan, Jackson and Lily L. Firth.
    
      Thomas Abbott MeKennell [Albert V. B. Voorhees, Jr., with him on the brief], for the appellant.
    
      William C. Beecher, for the respondents.
   Goodrich, P. J. :

The action is brought to foreclose á mechanic’s lien on two houses and a plot of land on Bay Thirty-fourth street, Bensonhurst. Our decision must depend mainly on the question of the ownership of the property. The defendant Robert "W. Firth was formerly the ■owner of the premises. He conveyed them, with ten other lots on Sixtieth street, to the defendant Fielding in November, 1897, by a deeid absolute in form. The evidence shows that at the -time of the execution of the deed Fielding had recovered a judgment against Firth for $1,954.92. Fielding also had in his hands for collection, as attorney for other parties, other claims aggregating about $2,000-There was also a blanket, mortgage on all the premises amounting to. $5,460, and a mortgage on three of the Sixtieth • street lots of $300. Fielding testified that there remained unpaid on the judgment and the claims in his hands at the time of filing the lien $3,569.03, which, added to the mortgages,-with interest, made the aggregate of all the incumbrances a little over $9,000, while there is evidence tending to show that the value of the Thirty fourth street property was about $6,600. Fielding also testified that the deed was given as security for his judgment and the claims in his Rands.

Between June 13 and 23, 1898, the plaintiff, under a contract with Robert W. Firth, performed the work specified in the. notices ef lien, which consisted of digging cellars and laying foundation walls. ■ On July second the plaintiff filed with the county clerk a notice of lien in which he stated the owner to be the defendant Robert W. Firth. On August sixteenth he filed another notice in which he ■stated the owner to be Fielding. On August twenty-ninth Fielding ■filed a bond to discharge the two liens, in which he styled himself as owner. The other defendants, Corrigan, Jackson and Mrs. Firth, were sureties on the bond, and an order was made discharging and ■canceling the liens. The condition of the bond was that Fielding .should “pay any judgment that may be rendered against said property for the enforcement of said liens or either of them.”

The court found that the deed, while absolute, in form, was intended by said parties, and was delivered by said Robert W. Firth and accepted by said Fielding, to secure payment, as far.as the equity in the property would pay the same, of the amount of the several claims before stated, said Fielding to sell the property to the ■best advantage; that Robert W. Firth had an equitable interest and ownership in the property at the time when the lien was filed; that. . the claims against the property exceeded .the value of the same above the mortgage, and that consequently Firth had. no equity in the same. He ordered a personal judgment against Robert W.. Firth for the amount, and dismissed the complaint as to the other defendants.

The appeal from-the judgment requires the consideration of the legal ownership of the property. In Odell v. Montross (68 N. Y. 499) it was held, Judge Allen writing, that a deed absolute in Esternas, but given simply as security for the payment of. money, is a. mortgage, with all the incidents of that instrument, and that the • rights and obligations of the parties to. the instrument are the same* as if the deed had been subjected to a defeasance expressed in. the-body thereof, or executed simultaneously with it; that it must berecoi’ded as a mortgage, and not as a deed; that the legal title*' remains in the mortgagor, is subject to dower and curtesy, to the* lien of judgments, and may be sold on execution, may be mortgaged and sold as any other estate in lands, while the mortgagee has but a. lien upon the lands as a security for his debt; and.that the land is-■not liable to Ms debts or subject to dower or curtesy or any of the* incidents of an estate in land. ■ A similar doctrine was announced in Shattuck, v. Bascom (105 N. Y. 39) and Macauley v. Smith (132 id. 524).

It follows that Robert W. Firth was the owner of the property at the time of his contract with the plaintiff and the performance* of the work, and that the first notice of lien was a sufficient compliance with the statute known as the Lien Law (Chap. 418, Laws-of 1897). ' .

The filing of the second lien did not' impair the; rights of the-plaintiff under the first lien ; but even if such a.claim could be made* successfully, it is sufficient to say that the bond executed by the-defendants was conditioned to pay the plaintiff’s claim under either notice of lien.

. By the giving of the bond, it was substituted in place of the property, which was thereby discharged from the lien. The defendants- * cannot be permitted to show that Robert W. Firth had no interest. in the property on the ground that the incumbrances exceeded the the value of the property. Assuming that the value of the premises against which the lien was filed was' less than the incumbrances, it is not shown what was the value of the Sixtieth street lots and what had become of them, so that we are unable to say that the claims which the deed was given to secure could not have been made out of that property.

In 2 Story’s Equity Jurisprudence (§ 1233d) it is said: “ The general rule now acted upon by courts "of equity is that, where there is a lien upon different parcels of land for the payment of the same debt, and some of those lands still'belong to the person who in equity and justice owes, or ought to pay the debt, and other parcels of the land have been transferred by him to third persons, his part of the land, as between himself and them, shall be primarily chargeable with the debt.”

Moreover, we think that all of these questions were waived by the defendants when they executed the bond and thereby discharged the plaintiff’s lien on the premises in question. If no bond had been given and the plaintiff’s lien had been foreclosed, he would have been entitled to a judgment against the property, and we cannot say on the evidence that a sale would not have produced a sum sufficient to pay the plaintiff’s claim over and above the incumbrances.

In our view, it is not important to consider whether or not Fielding consented to the performance of the plaintiff’s work. Such consent would be necessary only if he were the owner of the property, and we have held that not he, but Robert W. Firth, was the owner, and as such made the contract with the plaintiff. It is, however, not useless to refer to the fact that while Fielding at first did not fully approve the position where the cellars were dug, he subsequently adopted it by building houses upon the foundations, and thereby has acquired the benefit of the plaintiff’s labor and materials.

For these .reasons, the judgment should be reversed as to the defendants Fielding, Corrigan, Jackson and Mrs. Firth, and judgment directed against them, with costs.

All concurred.

Judgment reversed as to defendants Fielding, Corrigan, Jackson and Mrs. Firth, and judgment directed against them, with costs.  