Gardner v. Hall

The supplemental agreement indorsed on the back of the contract on which this suit is founded, did not extend the time of payment beyond the year. It was a conditional agreement to extend the time of payment. It was an agreement.purely executory. Hntil the mortgage should be executed as provided therein, all the obligations of the principal agreement, including the times of payment, remained in full force. The mortgage never was given. The contingency upon which the extension of the time depended, never happened. Had the mortgage been given as agreed, that would, of itself, have destroyed the mechanics’ lien, which may be done as effectually by the taldng of other security as by an extension of the time of payment beyond the year.

Then why not say, with the same propriety, that an agreement was made to give other security, and therefore the lien was destroyed? The answer to the one objection is the same as to the other. An agreement was made to give a mortgage which would have destroyed the lien, but no mortgage was given, and hence the lien remained. So was an agreement made to extend the time of payment, which would destroy the lien, upon the execution of the mortgage. But the mortgage was never executed, and hence the time was never extended and the lien never waived thereby.

1 There were four defendants to the bill, three of whom were served. One defendant filed a demurrer. In the final order sustaining the demurrer and dismissing the bill, the clerk says, the defendants appeared; and it is now suggested that the appearance of the defendant not served was thereby entered, and as he is since dead, we cannot reverse the decree till his representatives are made parties. The simple answer to that is, that the appearance of the defendants, by their solicitors, will be referred to those only who had been served. This we have decided on several occasions.

The decree is reversed, and the suit remanded.

Decree reversed.