Hays v. Tryon

1. In regard to the subject matter of the exception in relation to Powell Carpenter’s claim, the act relating to mechanics’ liens, prior to that of the 16th June, 1836 apply, he having supplied materials before that act went into effect, which was in September, 1836. The claim filed against George Tryon, when the real owner was Jacob A. Tryon, was erroneous, and if the claim in this instance depended on the filing within the six months, &c., the claimant would not be entitled to any portion of this fund. But the act of 17th March, 1806 prescribed that if the property were sold by the sheriff', within two years from the commencement of the building, any claimant might come in upon the fund, although he had not filed his claim in the office within the six months. The property, in this case, was sold within that period, and the irregularity of the claimant in filing his claim of record, does not prevent his making out his just claim for materials furnished in the erection of the building, &c. against the fund, upon the principles stated. The claim of Carpenter must therefore be allowed.

2. The objection to the claim of Thomas R. Sagers is, that his judgment wras not a lien, because it was by default for want of an appearance, and no damages had been assessed, although a statement of the plaintiff’s claim was filed in the suit. This is said to be an interlocutory and not & final judgment. We think otherwise; see Com. v. Baldwin, 1 Watts 54, and McClung v. Murphy, decided in this court.a

This exception is therefore not sustained, and this decision disposes of the third exception.

4. The point of the fourth exception is removed by the supplemental report of the auditor.

5. We are not called upon to decide whether a sale on a mechanic’s claim and on a venditioni exponas under the acts of 1806 and 1808 would divest the lien of a mortgage given prior to *213the commencement of the building by operation of the act of 6th April, 1830. Here the parties agree that the mortgage of John M’Curdy shall be paid out of the fund.

Report confirmed.