Cronk v. Whittaker

This court have considered the main question raised by this appeal, in the case of Doughty v. Devlin, in which the opinion of the court is now filed. We have there decided that payments made in good faith by the owner, according to the terms of his contract for the building, before the notice of claim is filed, are to be allowed to him as a defence, in proceedings taken under the mechanics’ lien law of 1851. And by necessary consequence, that if nothing is due from the owner when such notice was filed, andnothing becomes due thereafter, he can be compelled to pay nothing. We also hold *649in that case, that the owner cannot he required to pay money to the claimant before it becomes due to the contractor. These views must also involve the necessity of taking into account previous Hens in any proceedings on behalf of a claimant under this law. And this last proposition is entirely clear, when it is observed, that by the first section of the act the lien extends only to the right, title and interest of the owner existing at the time the notice is filed; and it follows, that any liens upon the premises at that time, must be taken into view on the foreclosure, in determining how much the owner or the premises shall be adjudged liable for.

So that on all these grounds we think the court below erred in the present case.

We have considered these questions fully in the case above mentioned, not only with a view to the case then under advisement, hut also in reference to numerous other cases then also pending. And we, therefore, instead of discussing the questions at length, refer to the opinion in that case, for a more full exposition of the law in question.

The judgment must be reversed. And as the question appertains to the construction of a new and somewhat unintelligible statute, we regret that we have no power to reverse without costs; hut the statute has left us no discretion in that respect.

Judgment reversed.