
    Henry Spruck, Resp’t, v. Hugh McRoberts, Impl’d, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 3, 1893.)
    
    1. Mechanic’s lien—Consent op owner.
    Plaintiff erected a building under a contract with T., who had wrongfully deprived this defendant of the land, from which T. was after-wards ejected. Before taking the contract he was fully informed as to the condition of the title, and warned by different persons that the land belonged to defendant, to which he replied that he was willing to take his ■ chances. Held, that the mere silence of defendant or his omission to forbid the plaintiff from proceeding under his contract could not be construed into consent on his part to anything that was done by the parties in possession, or by the plaintiff acting under their authority.
    3. Same.
    The true owner was not bound to seek out the plaintiff, or any one else acting under a hostile claim, and inform him of his rights at the peril of subjecting his property, which at all times he was seeking to recover, to the burden of a lien based upon acts manifestly wrongful, and against which he in every proper way protested.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff in action to foreclose mechanic’s lien.
    
      William M. Mullen, for app’lt; Oscar Frisbie, for resp’t.
    
      
       Reversing 45 St. Rep., 624.
    
   O’Brien, J.

The plaintiff recovered a judgment directing the sale of certain lands of the defendant McEoberts to satisfy a mechanic’s lien, which it was claimed the plaintiff had under the provisions of chapter 342 of the Laws of 1885. The -notice of the lien was filed in the proper county on the 11th day of April, 1889, against one George Tarter and his wife, as the owners of of the land, and the defendant McEoberts is not referred to therein as owner or otherwise. The plaintiff entered into a contract on the 13th of November, 1888, with Tarter and his wife for the erection of a hotel building on the lands, at a cost of over $6,000, and was paid by them from time to time during the progress of the work, and in pursuance of the contract, about $5,000. The defendant is, in fact the owner of the land, and was when the contract was made and the building erected, but some time before the contract was made the Tarters went into the actual possession under title hostile and adverse to the defendant, and kept their possession, and assumed to be the owners in hostility to the defendant until the 2d day of January, 1890, when they were compelled to surrender the premises to the defendant under a judgment and execution in an action of ejectment.

This action was commenced against the Tarters, their grantors and others, on the 27th day of March, 1889, by the service of a summons and complaint and the filing thereof with a notice of the pendency of the action in the county clerk’s office of the proper county. The plaintiff by his contract was to complete the building on or before May 1, 1889, and it was completed substantially according to the contract, a considerable part of the work having been done after the defendant had brought the action to recover the land upon which the structure was being erected. There can be no doubt upon the finding that the plaintiff entered into the contract and erected the building upon the faith of the title and responsibility of the Tarters, and trusted to them and their title for payment of his compensation. The referee has found substantially that the plaintiff, before entering into the contract, was notified by different persons that the land belonged to the defendant, and to have nothing to do with the erection of the building, to which he replied in substance that he was willing to take his chances ; but the force of these facts was evidently much impaired in the mind of the learned referee by the circumstance which he finds, that this notice was not given in pursuance of any authority or request from the defendant himself. One of the persons who thus warned the plaintiff of the danger of making any expenditure upon the land on the strength of Tarter’s title was the attorney of record for the defendant in this action, and it is a fair inference from the whole record that he acted for the defendant, or at least obtained the information from him. But however that may be, the important fact cannot be ignored that the plaintiff, before he made any contract to build and before he incurred any expense, was fully informed, not only of these statements, but by his own inquiries and investigations, as to the condition of the title, and that with full knowledge of all the facts he deliberately elected to enter- upon and perform the contract for the construction of the building upon the faith of a title which proved to be utterly invalid, and also in reliance upon the pecuniary responsibility of'parties who failed to pay the contract price in full. The record does not disclose the slightest ground for supposing that the plaintiff’s conduct in this respect was influenced in any degree by any word, act or omission of the defendant, and so far as the plaintiff seeks to sustain the judgment upon general principles of equity these considerations are important.

The statute which gives to a contractor, mechanic or material man a lien upon the lands of another created a remedy in such cases which was unknown to the common law, and while it must receive a liberal construction to secure the beneficial purposes which the legislature had in view, it cannot be extended to a state of facts not fairly within its general scope and purview. Spencer v. Barnett, 35 N. Y., 94: Tiley v. Thousand Island Hotel Co., 9 Hun, 424.

The statutory incumbrance is imposed upon real estate in such cases only when the work is performed or materials furnished in pursuance of some contract with the owner who is sought to be charged, or whose interest is to be affected, or when his consent is in some way established. It is not claimed that the defendant ever made any contract with anyone that connects him in any way with the work or material that the plaintiff put upon the land. The judgment proceeded and has thus far been upheld upon the sole ground that the building was erected with his consent. It is not, and obviously cannot be urged that any express consent is shown. The most that can be claimed is that the defendant knew what was being done by the plaintiff and failed to forbid or prevent him. There is not the slightest reason to believe that anything the defendant could have said to the plaintiff would have influenced his action or changed his resolution to take the chances upon his contract with Tarter. The latter agreed to pay him $6,860, and actually did pay $5,000, and no doubt the plaintiff would have been successful in collecting the whole sum from the parties who agreed to pay had the judgment in ejectment been delayed or given against the defendant. The result of that suit was a contingency which evidently did not enter into the plaintiff’s calculations at the time he entered upon the performance of the contract to build, though the information in his possession, or within his reach, might very well have foreshadowed the risk involved. If the defendant had consented to the expenditure made by Tarter upon this land, that fact might have been a very serious obstacle in the way of his action to recover it, or even if, with knowledge of all the facts, he looked on and allowed an innocent party, believing that he had the title, to make valuable improvements upon it without objection, equity might hold him estopped from afterwards calling in question the title of a party who had acted upon the faith of his silence. But these principles have no application to this case, for the plain reason that it does not appear that the defendant failed in any duty that the law imposed upon him, or that the plaintiff acted otherwise than upon his own judgment, having knowledge of all the facts.

The defendant had been ousted from the possession of his land by parties claiming title, but who were in-fact mere trespassers, and while thus out of possession and wrongfully deprived of any control or dominion over it, the plaintiff contracted with the wrong doers to erect a building on the land. His security for the payment of the contract price of the building under these circumstances was the personal responsibility of his employers and their interest, whatever it might turn out to be, in the land. In the absence of proof connecting the defendant with the contract, or showing that he consented to the work, neither he nor his title is bound by what was done. When a contractor, mechanic or material man proposes to erect a building, or to expend labor or material upon land under a contract with a person in possession, it is incumbent upon him to inquire and to assure himself of the fact that the person with whom he contemplates making the contract, or for whose benefit he is about to employ labor or materials, has in fact such an estate or interest in the land as will enable him to assert a statutory lien. If he fails to do this, or is mistaken in his calculations, and contracts with a person without title, the statute does not impress a lien upon the estate of the true owner unless he is in some way connected with the contract or has given his consent to the expenditure in such manner as to bind him within recognized principles of equity.

The cases relied upon by the learned counsel for the plaintiff to support the judgment are clearly distinguishable from this, as in all of them the actual owner had in some way authorized the improvement, or was related to the contract, or given his consent, or, having the control or possession of the property, his consent was found as a fact from circumstances, and such finding was a just and reasonable inference from his conduct. Schmalz v. Mead, 125 N. Y, 188; 34 St. Rep., 779; Otis v. Dodd, 90 N. Y, 338; Husted v. Mathes, 77 id., 388; Burkitt v. Harper, 79 id., 273; Cowen v. Paddock, 137 id., 188; 50 St. Rep., 386.

The record in this case discloses no such element of consent. The defendant’s position was that the possession of Tarter and his wife was wrongful from the beginning, and that they were trespassers upon his property. He not only refused to sanction any act of ownership or dominion on their part over the property, but actually brought an action to eject them therefrom a very short time after the plaintiff entered into the contract with them, and before it was performed, and there can be little doubt from the record that the plaintiff had full information as to his attitude. At all times, and in all reasonable ways, the defendant resisted and repudiated the Tarters’ possession and claim to the property, and the plaintiff, having acted under their authority solely, cannot, under the circumstances, be awarded any greater or different measure of relief than they could assert themselves.

The defendant having been deprived of the possession and control of the property, and his rightful relation to it having been usurped by a trespasser, his mere silence, if it be assumed, or his omission to forbid the plaintiff from proceeding under his contract, cannot be construed into consent on his part to anything that was done by the parties in possession, or by the plaintiff acting under their authority. The true owner was not bound to seek out the plaintiff, or anyone else acting under a hostile claim, and inform him of his rights at the peril of subjecting his property, which at all times he was seeking to recover, to the burden of a lien based upon acts manifestly wrongful and against which he in every proper way protested. Cowen v. Paddock, supra. The situation is not changed by the fact, if it be so, that the defendant’s property has been enhanced in value by the plaintiff. A learned authority on the law of damages, in discussing the rule applicable to cases quite analogous, remarked that the improvements may be very valuable, but they may be quite unsuited to the use which the plaintiff intends to make of bis land. Even if they are such as he would wish to make, they may also be such .as he could not have afforded to make. To compel him to pay for them or to allow for them in damages, which is all the same, is quite as unjust as it would be to lay out money in any other investment for a man, and then compel him to adopt if nolens ■volens. Mayne on Damages, 255; Woodhull v. Rosenthal, 61 N. Y., 397. One cannot make improvements upon the land of another without his consent, and charge him with their value, and as the defendant’s consent to the erection of the building cannot be implied from the facts in this case, the recovery cannot be sustained upon any just or fair construction of the statute in regard to mechanics’ liens, nor upon any principle of equity.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide the event.

All concur.  