
    THE EXECUTORS OF NICHOLAS VANDYNE v. JACOB S. VANNESS AND OTHERS.
    1. Construction of the mechanics’ lien law applicable to some parts of the state.
    2. A carpenter finished a dwelling-house on a tract of land on the 17th November, 1842, and filed his claim in the office of the clerk of the county, on the 17th January, 1843. On the 22d December, 1842, the owner of the land, then in possession of the house, mortgaged it to a person having no actual knowledge of the carpenter’s lien. Meld, that the carpenter’s lien wan prior to that of the mortgage.
    3. It was held that the carpenter’s lien was not confined to the house and the ground it covered, hut extended to so much of the tract of land on which the house was built as, with the house, would be required to discharge it.
    Bill for the foreclosure of a mortgage given by Jacob S. Vanness to Nicholas Vandyne, since deceased, dated November 24th, 1838, and recorded November 24th, 1838. T. B. & I. Odell and Evert Vanness, subsequent mortgagees, and Henry H. Vanness, Morrell & Post, Wilson & Wilson and Daniel Schoonmaker, subsequent judgment creditors of the mortgagee, were made defendants.
    The defendant Schoonmaker, in his answer, states that he is a carpenter; that on or about January 17th, 1842, he entered into an agreement with J. S. Vanness, by which Vanness employed him to build a dwelling-house, store-house, and other improvements on part of the tract of land mentioned in the mortgage of the complainants; and that he, soon thereafter, commenced labor thereat, and employed laborers and workmen in preparing materials and putting up said improvements; and that he finished the .same on or about November 17th, 1842. That on or about January 17th, 1843, within six months after the completion of the said work, he filed in the clerk’s office of the county of Passaic, a claim in writing for his said work and labor, in the words and figures, &c., (giving the claim as filed,) with a declaration annexed thereto of holding a lien on the said buildings for the balauce of $312.86, under and by virtue of an act of the legislature of the State of New Jersey, entitled “ An act for securing to mechanics and others payment for their labor and materials in erecting any house or other building within the limits therein mentioned,” passed March 3d, 1835, and the supplement thereto.
    That on or about February 8th, 1843, within six months after the completion of said work, he brought an action on the case, in the Circuit Court of Passaic county, for the recovery of his said claim thus filed ; that he filed a declaration in that action for the amount due him on his said claim, and in his declaration claimed as having a lien on all the said dwelling-house, store and improvements, and also on all that lot of land beginning at the S. W. corner of the lot belonging to D. Schoonmaker, and on the line of the Newark and Pompton turnpike road ; thence running south along said road 300 feet; thence easterly ami at right angles to said road 150 feet; thence north 300 feet to said D. Schoonmaker’s line; thence west 150 feet to the place of beginning. That J. S. Vanness defended the said action, and that, on the 19th July, 1843, he obtained a judgment against Vanness, on the verdict of a jury, for $300.86 damages and $46.58 costs.
    He admits that on or about February 11th, 1843, Cornelius Vanness filed in the clerk’s office a lien or claim of about $60 for mason work done to said house and buildings, and that on or about February 25th, 1843, Jacob Vanness assigned to James Vanness all his estate, real and personal, in trust for his creditors, and that said deed of assignment was acknowledged and recorded as stated in the bill.
    He says that the said action brought by him against said J. S. Vanness, was brought and prosecuted under the said act of the legislature and the said supplement thereto. That on or about July 19th, 1843, execution was issued on his said judgment, directed to the sheriff of Passaic county, commanding him to sell the said dwelling-house and other buildings and the lot of land on which the same was erected, in the township of Manchester, in the county of Passaic, aforesaid, the said lot of land being therein particularly described; and that the sheriff, by virtue of said execution, levied on the said buildings and land ‘ and he claims that by reason of the facts set forth in his answer, the claim thus filed by him was a lieu on the said buildings and the laud on which they were erected, and that the encumbrances of the other defendants are all subsequent to the completion of his work on the said buildings. He insists that if, on a sale of the property under a decree of this court, there should not be enough raised to satisfy the complainant’s mortgage and his lien, be is entitled, either to be paid a ratable proportion with the complainant, of the proceeds of the sale, or tiiat he has a priority, next subsequent to the complainant’s mortgage, over all the other encumbrances ; and he submits that the premises covered by the complainant’s mortgage, excepting thereout the lot of land on which the buildings were erected, and on which he has filed his lien, obtained judgment and issued execution, should be first sold.
    The answer of Morrell & Post states that they are lumber merchants, and that in 1842, J. S. Vanness, being in possession of the mortgaged premises, which were then lawfully encumbered, as they are informed and believe, only by the mortgage of the complainants, and being about to erect on the mortgaged premises, or a part of them, a dwelling-house and store, they, on his application, and from July 27th, 1842, to October 13th,. 1842, furnished him with lumber to the value of $235.99,, which was used by Vanness in and about the erection of said buildings on a part of the mortgaged premises. That within six months after furnishing the lumber, and on the 21st January, 1843, they filed their claim for said lumber in the clerk’s office of the county of Passaic. That at the term of February, 1843, of the Circuit Court of Passaic county, they brought an action against Vanness for the recovery of their said claim, and that on the 18th July, 1843, they recovered for their said claim a judgment against Vanness for $235.97 damages and $33.92 ■costs. That execution was issued on said judgment, against the buildings and the land whereon the same were erected, and delivered to the sheriff) which remains in his hands unsatisfied.
    The answer of the Odells states that on or about' December 9th, 1842, J. S. Vanness applied to them for dry goods on credit, and represented to them that his farm and improvements, (being the same described in the bill,), were free from encumbrance except the mortgage held by the complainants, and offered them a mortgage on the same premises for the goods he wanted. That they thereupon made inquiries as to the situation and value of the premises, and having caused the records to be searched, found no encumbrance thereon except the mortgage held by the complainants. That in reliance on the security proposed, they sold to Vanness the goods he wanted. That Vanness, having thus become indebted to them, on the 22d December, 1842, gave them his bond of that date, conditioned for the payment of $1000 on or before the 22d June following, with interest, and that, to secure the said bond, Vanness and his wife, on the same day, executed to them a mortgage on the premises described in the mortgage held by the complainants. That the said mortgage was acknowledged January 5th, 1843. and recorded the next day.
    They say that when they received the said mortgage the said mortgagor was in possession and occupancy of the buildings which were erected on the premises; that the judgment creditors had not filed any claim under the acts of the legislature to secure mechanics, &e., nor commenced their suits; and that these defendants, having neither actual nor constructive notice of their pretended liens, sold their goods in good faith, relying for security of payment on the value of the premises and improvements thereon embraced in their mortgage; and they submit that the said acts do not create a lien on the premises, or any part thereof, which, under the circumstances of the case, should be preferred to their mortgage ; that their mortgage being made and recorded prior to any act done by those defendants under said acts of the legislature, and before the judgments in favor of those defendants were rendered, their mortgage is valid against all subsequent judgment creditors and all claiming a preference by virtue of said acts of the legislature and of proceedings subsequent to the registry of their mortgage; and they further submit that if the defendants who claim a preference' under the said acts, have any prior liens on said buildings, such liens are confined to the buildings, and do not extend to or affect the land on which the buildings have been erected, to the prejudice of prior bona fide mortgagees.
    And they further submit that as the said defendants made their election, under the second section of said acts, to proceed for the recovery of their demand by personal action, instead of proceeding by mire facias to enforce their liens, they have waived their preference, and were not authorized to issue executions against the buildings and land on which they were erected, so as to claim priority over them,
    The answer of Evert H. Vanness states his mortgage, and that it was recorded, without saying when ; and claims that it has priority over all other encumbrances except that of the complainants. This mortgage is dated January 7th, 1843.
    The cause was brought to hearing on the bill and answers.
    P. D. Vroom, for the mortgagees.
    
      H. W. Green, for the mechanics.
   The Chancellor.

The controversy is between the mortgagees holding mortgages subsequent to the complainants’ mortgage, and the mechanics claiming liens, under the statutes referred to in their answers, for work and labor and materials found in and for the erection of the buildings.

The first section of the act provides that all claims for such work and materials shall be filed in the office of the clerk of the county, within six months from the time the work is done or the materials are furnished. The second section provides that in all eases of lien created by the act, the person having a claim filed as aforesaid, may, at his election, proceed to recover it by personal action against the debtor, or by seire facias against the debtor and owner or owners of the buildings; and when the proceeding is by scire facias, if the defendant fail to appear, the court shall render judgment as in other cases on writs of scire facias; but if he appear, he may pléad and make defence, and the like proceedings be had as in personal actions for the recovery of debts; and upon judgment being rendered thereupon, execution shall issue against the building and land on which the same is erected, subject to all prior claims as aforesaid; that is, in the language of the first section, all prior claims on mortgage or judgment against the land-owner on the land on which the building is erected, and prior to the erection thereof. The act creates a lien for the materials found for and the work done in erecting the building, from the time of the material found or the work done, if the claim is filed within six months from that time. There is another provision in the first section of the act, that no such demand shall remain a lien longer than two years from the commencement of the building, unless the claim be filed within six months after performing the work, or furnishing the materials, and an action for the recovery of the same be instituted within one year after the work done or material found.

The extent of the lien, as to the subject of it, is shown by the mode pointed out, in the act, of enforcing it at law. It is to be enforced at law by judgment for the claim filed, and execution against the building and land on which the same is erected. The lien, therefore, is on the building and land on which it is erected.

It was argued that proceeding by personal action against the debtor was a waiver of the lien. This cannot be so, consistently with the provision that the demand shall remain a lien for two years, if the claim be filed within six months, and an action for the recovery of the same be instituted within a year after the work done or materials found. The only consistent reading of the section pointing out the mode of enforcing the lien at law is, that the person having a claim filed as aforesaid may, at his election, proceed to recover it by personal action against the debtor, or by scire facias against the debtor and owner of the building, and, on judgment being rendered on the claim, in either mode of proceeding, execution shall issue against the building and land upon which the same is erected, subject only to such prior claims as are mentioned in the first section.

The claims of the mechanics, in this case, were subsisting liens at the filing of the bill — nothing had, or has been done or omitted, to forfeit or bar them — and this court must give them effect according to the provisions of the act. If there should not be enough to pay them both, after paying the mortgage of the complainants, they must pay ratably.

On what land are the claims liens ? The act says, the building and the land on which it is erected. Is it only the land which the building covers, or is it all of any distinct tract of land on whieh the building stands ? It seems to me it must be one or the other. If it be not confined to the land covered by the building — and this, I think, would be an absurdity — it must be the tract on which the building stands, for, if this be not so, we must make the equally absurd supposition that the legislature intended that the parties, or one of them, or the court, should determine what part of the tract should be subject to the lien, that is, how much of a tract, besides the foundation, a house shall be held to stand upon.

How shall the property be sold ? If the whole of the land mortgaged to the complainants will, not bring enough to pay them, it is unimportant to the subsequent encumbrancers how the property is sold. If it bring more than the first encumbrance, the building must be supposed to contribute to such surplus, and such surplus should go to pay for the building. The court, on general principles, might order the property sold together or in such parcels as it might direct, as should seem, most advantageous for the encumbrancers. It seems to me thát the court can act on no other principles in this case, and that no advantage could résult to the subsequent encumbrancers, or any of them, in this case, from the adoption of any other principle or mode of sale. A holds a mortgage ‘on a tract of ten acres; B, a carpenter, builds a house on it, and acquires a lien for the amount -of his work, on, the building and land on which it is erected, and C takes a, subsequent mortgage on the whole. I see no good reason; why the whole, should not be sold together, and the proceeds applied to the encumbrances according to their priority.

True, a part of the land, not including the house, might bring enough to. satisfy the first encumbrance. This would leave the residue of the land, including the house, for the carpenter and. the subsequent mortgagee. If, in this state of things, the. subsequent mortgagee could confine the carpenter to the house and the land it covered, the residue of the land would go to pay his. mortgage, but it is plain this would sacrifice the carpenter’s interest, and it cannot be the meaning of the act.

I think the. true construction of the act will appear by supposing that no lien exists on the whole tract, except the carpenter’s lien for the house built on it. In that case, what would be the extent of the carpenter’s lien on the land on which the house was built? I think it would extend to so much of the land, as, with the house, would pay the lien. If this be so, then, in the case put, after selling so much of the land as •would pay A’s mortgage, the residue of the land, with the house on it, might as well be sold together. If it brought no more than, enough, to pay the carpenter’s lien, the subsequent mortgagee could get nothing; if it brought more, he could have the surplus. It is also apparent, from this, that in the case put, the whole tract' might as well be sold together, and the surplus, after paying A’s mortgage, be applied, first, to pay the carpenter, and the surplus beyond that, if any, to the subsequent mortgage.

It was said, in argument, that the carpenter would get a liea on the entire, tract of land, as security for a house he might build' on it. I see no reason why he should not, in good sense, and under the language of the act, have a lien on so much of the land, including the house, as will pay for building the house; and unless you can confine him to the ground covered by the house, there can be no other rule.

In the case in hand, I am of opinion that the claims of Schooninaker and Morrell & Post are liens on the buildings and on the tract on which they were erected, or so much thereof as will be necessary to pay them; and that these liens are prior to the mortgages set up in the answers.

Order accordingly.

Cited in Edwards v. Derrickson, 4 Dutch. 47-71.  