ereditors, by virtue of the lien given by the act: but the moment the lien expires, their judgments stand unprotected by the act, and can have no other effect than judgments usually have they were not obtained in pursuance of the act, and of themselves can have no preference over prior judgments. During the two years, the prior judgments would have been excluded by virtue of the lien created by the act, but not in consequence of the subsequent judgments obtained by the lien creditors; and as soon as that lien ceases, all the judg The question submitted to the court is, whether or not the creditors who claim for lumber and materials farnished and delivered as aforesaid, are to be first paid out of the proceeds of the sheriff's sale: if not preferred and first paid, whether must there be any, and what apportionment of the said money between them and the said judgment creditors. The case was argued by Bradford and Browne for the plaintiff, and by Ross for the lien creditors; but as the arguments of the former are stated and answered, and those of the latter supported by the opinion of the court, it is deemed unnecessary to repeat them. Per Curiam. Rush President. The lien acts of our state have given to those persons, who contribute materials or labor towards "erecting any house or building," a right to be paid, in preference to any other creditor, whose lien has originated after the commencement of the house or building. In the case now under consideration, it is conceded, that the houses were begun on the 24th and 25th of September, one thousand eight hundred and six, and that the judgments against the defendant, are all subsequent to those dates. The houses Nos. 2 and 3 were begun, before the first judgment was obtained, which was on the 9th of October, one thousand eight hundred and six, the very day on which Evans and Warner, delivered the first part of their lumber to the defendant. Upon the plainest principles of justice, the lien, in this case, must refer to the commencement of the building, and not to the time of delivering the materials, which there is every reason to believe, were contracted for, at, if not before the commencement of the buildings. This construction, so far as respects the delivery of the materials, is perfectly agreeable to the letter and spirit of the lien laws. Thus far, the case is exempt from difficulty, and the lien creditors are clearly entitled to recover. On the part of the plaintiff however, it is contended, that the lien laws have appropriated nothing but the house or building, as a fund to pay the material-men and the workmen; that the lot or ground is a distinct fund, liable to the judgment creditors at common law, and that some mode should be devised, such as directing an issue to ascertain their respective value, and apportion the money among the different creditors. This reasoning, however plausible it may appear, will be found, upon examination, to be impracticable and contrary to law. It is obvious, that this special claim of the lien creditors must be determined on a sound construction of the lien acts, and on established principles of law. There can be no question as to the view of the legislature, which certainly was, to give the lien creditors every possible benefit arising from the house or building, as a fund for the payment of their demands. The project of selling the house, without the lot, would in a great degree, if not entirely, destroy the fund provided by the legislature. The security and preference given to them, would be a shadow instead of a substance. The titles to real property would be infinitely perplexed by a proceeding of this kind. One person would own the house and another the lot. In case the house only were sold, the purchaser would have no right to a foot of the adjacent or surrounding ground, and the owner wight build against his doors and windows. It is impossible to trace all the mischiefs resulting from this new fangled title. Upon general principles of law, we are also of opi. nion, that the liea creditors have a right to sell both house and lot. A grant of the profits of land is a grant of the land. A grant of a pool of water is a grant of the land, which it covers. I Inst. 5, 6. So a grant of a house, is a grant of the lot, and the curtilage.Upon this principle, a lien on the house, in the present case, is a legislative grant of both house and lot to the grantee. When a man grants to another a lien or mortgage on his house, it is in law a lien or mortgage on the lot also. 1812. CORNELIUS against UHLER. 1812. CORNELIUS against UHLER. ments on record must take effect according to their dates. The lien creditors might have made their liens perpetual, by pursuing the directions of the act; but, as they have neglected to do so, and have adopted the common law remedy, there is no reason why they should be preferred to other creditors, who have been more vigilant than themselves, and have obtained prior judgments. The court direct, that the money in court be applied to the payment of the mortgages and judgments, according to their respective dates. With respect to lien creditors having a right to sell both house and lot, there can be no reason to doubt it. Like every other creditor, he has a right to proceed to judgment and sale, unless the law forbids it, which it has not in the present case. The proviso in the 2d section of the supplement of one thousand eight hundred and eight, has indeed restricted the lien creditor, in his execution and sale, to the identical property on which his lien exists; and this is the sole cbject of the proviso, which is confined also to the proceeding by scire facias against the owners of the house and lot. In consideration of the priority of payment granted to him, and that the property of the defendants may in such case be sold in their absence, it was deemed just to limit the right of sale to the specific house or building, he had, by his labor or materials, contributed to erect. The lien law supposes, which is often the fact, that the house is built by a person who has no right to the ground, and that the owner of the lot is wholly unknown to the lien creditor. The 2d section has therefore authorised the lien creditor, to sue the debtor, (the contractor) his executors or administrators by personal suit or action; or to proceed by scire facias against the debtor and owner of the building, or his heirs, executors or administrators. This remedy by scire facias supposes that the contractor and owner may both be absent or unknown to the mechanic; and a mode is introduced to secure the lies creditors at all events, by fixing a copy of the writ on the door of the house or building. On the supposition that the law has given the lien creditor a right to sell nothing but the building, look for a moment at the consequences. The owner of a lot, after building upon it a valuable brick house, finds himself unable to pay for it, and is indebted to no creditor, except the tradesmen and mechanics employed in erecting it. If the building alone is to be sold by the lien creditor, it will necessarily sell for a trifle, without the lot; and the debtor has only to get some friend to purchase it for his use, and he will practice a complete fraud on all his creditors. It is the opinion of the court, that the houses and lot are both equally subject to the claims of the lien creditors. We do therefore order, that they be first paid out of the proceeds of the sale, and the residue to go among the other creditors, according to the pri ority of their respective judgments. CASES IN THE District Court, FOR THE CITY AND COUNTY OF PHILADELPHIA, THIS DECEMBER TERM, 1812. SHULTZ against HUNTER. 1812. December 1. In an action for a joint tres Shultz pass, against Snyder, two or more, it' the jury find HIS action, which was in case, was commenced by a summons issued at the, suit of Charles against John Hunter, James Ronaldson and John The sheriff returned" summoned." Barnes and Browne, ap- the defendants peared specially for Hunter; Ewing and Rush, in the same they cannot asjointly guilty, way, for Ronaldson; for Snyder there was no appearance. sess several damages. The declaration was for a malicious prosecution. On the In an action twentieth of January, one thousand eight hundred and ten, for a joint tresthere was a rule to plead, and shortly afterwards the pleas three, the jury were entered in this manner : "Def't Ronaldson, pleads non cul and issue". pass against found a verdict in these words. « We ffiud for the plaintiff, five hun No plea was entered for Snyder. The verdict of the jury dred dollars, was in these words: We find for the plaintiff, five hundred the defendants dollars, to be paid by the defendants in the following pro- in the following propor "portions; by John Hunter four hundred dollars, by James tions; by A "Ronaldson fifty dollars, and by John Snyder fifty dollars, "say, five hundred dollars, with costs of suit." James Ronaldson paid into Court fifty dollars, together with all the costs. costs of suit." The court entered judgment de melioribus damnis. four hundred dollars, by B fifty dollars, and by C fifty dollars, say five hundred dollars with In a joint action of trespass against three defendants, no issue was joined as respected one defendant, the jury found the defendants jointly guilty, but severed the damages; the de fendant with whom issue was not joined filed a paper stating, "that he had no intention of continuing the suit, that he had no wish for a new trial, and that he was ready to pay the costs and damages:"-The court refused to arrest the judgment on the application of the other Cefendants. G 2 VOL. II. No, I. 1812. SHULTZ against HUNTER. On behalf of Hunter, two rules were obtained; one, to show cause why a new trial should not be granted, and the other in arrest of judgment. The following reasons were filed. For a new trial, The damages are excessive. In arrest of judgment, First, The jury have found the defendants jointly guilty, on a joint charge, yet they have severed the damages; which by law they cannot do. Secondly, As to Snyder, there was no appearance, or issue, joined, consequently no judgment can be entered against any of the defendants. Snyder, after the rules had been obtained, filed a paper, stating, that he had no intention of continuing the suit, "that he had no wish for a new trial, and that he was ready "to pay the costs and damages." Browne and Ercing, in support of the rule to shew cause why the judgment should not be arrested. This is an action on the case, but, being for damages for a tort, it is governed by the same rules as an action of trespass. Against joint trespassers there can be but one satisfaction. (a) The reason of this is, because it is one common undertaking, in which all must, necessarily, be guilty. How then can the damages be severed? If they are all sued in one action, though they sever in pleas and issues, yet one jury must assess damages as to all. (b) In an action of assault and battery, proof was that one of the defendants committed the most violent assault, but lord Ellenborough said, that the damages could not be severed; but that the jury might give a verdict against both, for the greatest amount of damage. If there could be a severance of the damages, then there would be seperate judgments entered in one joint action, for a joint trespass; which cannot be. In tresspass against several who join in pleading, if the jury find all jointly guilty, they cannot assess several damages. (c) Trespass against three defendants, and judgment by default, the plaintiff exe(a) Selwyn's N. P. 33. (c) ibid in note 4 Esp. N. P. Cas. 185. (b) ibid. cuted writs of inquiry against them separately, which they 181 3. contended to be irregular. Thirdly. As to Snyder, no appearance was entered, nor was any issue joined. As respects him therefore, there has been a mistrial. Trespass against two, and verdict for the defendants, and judgment was arrested, because no bail was entered for one of them; and it being a joint action and a joint verdict, it is irregular as to the whole. In an action of trespass against three, if one die, pending the writ, and judgment is given against the three, on a writ of error, the judgment shall be reversed, because it is entire; though the writ, by the death, abates only as to one. (a) So if judgment be arrested because one is an infant and appeared by attorney, it shall be reversed in toto. (b) So in an action. against A. B. C. A as a feme sole, and all plead to issue : the baron of A with A. B. and C. may bring error, and assign for error, the coverture of A; and judgment shall be reversed as to all; for it is entire. (c) If one defendant only be charged with the whole of the damages and costs, this may be alleged for error by the defendant not charged; for this is an error in final judgment; it is the fault of the court. (d) So a person may assign, for error, want of jurisdiction, though he chose to resort to it; (e) And error may be assigned in the entry of a judgment, though the error is to the advantage of him who assigns it. (f) They also cited and relied on the case of Ennet against M Donald* as in point. Hopkinson and Sergeant, for the plaintiff. If the jury had severed the damages in this case, it would have been nothing more than the plaintiff might do by his execution. But there has been no severance; the words “we find for the plaintiff five hundred dollars" is a complete verdict, and all the rest is surplusage, which the court will reject. (g) The court have power to mould a (a) 2 Tidd's pract. 797.) (b) 6 Term Rep. 199. Mitchel against Milbank. See also to the same point 6 Bac. abt. 597. 5 Bur. Rep. 2792. Bul. N. P. 20. 1 Str. Rep. 422. Cro. Eliz. 460. 2 Bac. abt. 273. (e) Vin. abt. 464. Bail I. 6. (e) ibid. 2 Cranch 126. Vide Appendix. (ƒ) ibid. (d) 2 Bac. abt. 500 Error M. 1. SHULTZ against HUNTER. |