Haynes v. Kimpton

The opinion of the court was delivered by

The mechanics’ lien which the plaintiff seeks in this proceeding to enforce, is a matter altogether of statutory regulation. The party must first cause to be recorded in the town clerk’s office, “ a written memorandum, by him signed, asserting such claim.” 2d. Commence his action on such contract, for which a lien is claimed, and “ cause said house or other building to be attached thereon. 3d. If he obtains judgment, the record thereof shall embrace a brief statement of the contract on which the same is founded.” 4th. “ Within five months after the date of such judgment, cause a certified copy of such judgment to be recorded in the town clerk’s office,” &c. These being done, the house or other building shall be holden for such judgment, in the same manner as if the same had been mortgaged.

The memorandum asserting the plaintiff’s claim of a lien on the building was duly recorded. But the record of the judgment gives no intimation that the recovery was had on a contract to furnish materials for building the mill; or that it had any reference to or connexion with the memorandum recorded in the town clerk’s office. The incipient lien therefore became extinct by the failure to comply with the statute requirements.

There is no claim that the judgment is erroneous, or incomplete as a judgment; but that there was omitted the proof and record of a necessary fact in order to preserve the lien.

Whether such lien could be revived after it had once lapsed, as against the judgment debtor, by bringing forward the case on the docket, and entering up a new judgment, we need not discuss, as *52several intervening rights have attached. Kimpton deeded to Hobson on the 21st August, 1871; and Hobson deeded to Pierce 13th day June, 1872. And on the 3d January, 1873, Wins-low & Coombs took a large mortgage on the premises. The court found that Hobson and Pierce, at the time they acquired title, had such knowledge of plaintiff’s claims, as to be put on inquiry in relation thereto. But such inquiry would have informed them of the actual facts; the plaintiff had given notice of a lien, but had not preserved it. 33 Vt. 302. And as to Winslow & Coombs, there is no claim they had notice of any facts that should have put them on inquiry. The inquiry is, therefore, whether it be competent for the county court to order a case brought forward and hear evidence and adjudicate a fact and engraft into the record material statements, for the mere purpose of reviving a lien that had lapsed and become extinct, as against purchasers and owners of the estate who had acquired title after such lien had lapsed and terminated? We think not. There is no doubt that courts have control over their own records, and may bring forward a case, and cause the record to be perfected. But this judgment was regular and record perfect, so far as concerns the judgment. And this proceeding is had, avowedly, to create a lien which is lost. If the first attaching creditor of real estate, having neglected to levy his execution within the statute time, should ask to bring forward his case, for the purpose of restoring his lien by attachment which had become extinct, it would be a flagrant abuse of the power to correct a record. And although such action would not, in fact, revive such attachment to the prejudice of intervening incumbrances, still, we think, such proceedings for such purpose would be without warrant of law.

II. In the view we have taken of this case, we do not deem it necessary to carefully examine the affidavits attached, and determine whether any of the items in plaintiff’s claim, and if so, how many, are such that the statute lien could not attach ; and whether a judgment including such items would operate in whole or in part, or not at all, as a lien upon the premises.

Judgment reversed, and motion dismissed with cost.