State Board of Assessors, Suburban Inv. Co. v. (N. J.)...... (Pa.) 983 .1055 State Board of Taxes and Assessments, At- State Board of Taxes and Assessment, 64 Township of Woodbridge, Middlesex Coun- 418 807 ...1051 Trenton & Mercer County Traction Corp. v. Ewing Tp. (N. J. Ch.). .1037 72 31 Trenton & Mercer County Traction Corp. 562 137 486 Trustees of Trinity Union Methodist 327 88 989 428 937 Tuttle v. Cumberland County Power & Light Co. (Me.).. 451 Stratford v. Franklin Paper Mills Co. (Pa.) 349 Strauss, Lehigh Valley Trust Co. v. (Pa.)..1047 Streit, Saupp v. (Pa.).. T. W. Griffith Realty Co., Fisher v. (N. J. Ch.) 411 939 THE ATLANTIC REPORTER VOLUME 101 (11 R. I. 347) LANSING et al. v. CAMPBELL. (No. 374.) (Supreme Court of Rhode Island. PRIORITY OF LIEN MORTGAGES 151(3) [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 332-336.] Appeal from Superior Court, Kent County; John W. Sweeney, Judge. Mechanics' lien petition by George D. Lansing and others against Lena Campbell. From a decree establishing a prior mortgage lien, petitioners appeal. Decree reversed. Gardner, Pirce & Thornley, of Providence (Charles R. Haslam, of Providence, of counsel), for appellants. Mumford, Huddy & Emerson, George H. Huddy, Jr., and E. Butler Moulton, all of Providence, for appellee. PER CURIAM. The justice before whom the above-entitled lien petition was tried in the superior court has found as a matter of fact in his decree entered on the 10th day of November, 1916, that the petitioners did at the time of foreclosure of the mortgage held by George M. Hamlen have a mechanics' lien upon the premises described in the petition to the extent of $224.49 for materials furnished for the construction of a house on said premises. The decree also finds that George M. Hamlen, at the time of foreclosing the mortgage, was not chargeable with notice of said mechanics' lien, and that the mortgage owned by Hamlen constitutes a prior lien or claim against the property described and takes precedence of the petitioners' claim. From this decree the petitioners have taken their appeal and duly prosecuted it to this court. No appeal was taken by any other party. The petitioners' reasons of appeal simply raise the question of priority as between the mechanic's lien and the mortgage lien, and that is the only question now before this court. The trial judge found as a matter of fact that the excavation of the cellar, upon which the house was afterwards built, was made in September, 1912, while the property was owned by C. E. Barney Company; that the stone work was not done until the following spring; and there was evidence from which he could so find, and no evidence to the contrary was introduced. It further appears that after the excavation for the cellar was made, to wit, on the 15th day of October, 1912, the C. E. Barney Company sold the lot to Lena thereon on the same day to C. Edward BarCampbell; that she executed a mortgage ney; that on November 4, 1912, the said mortgage was transferred to George M. Hamlen; and that said deed and mortgage were recorded November 6, 1912. It thus appears that the mortgage lien originated subsequent to the excavation of the cellar which was the beginning of the work of construction which was afterward carried out in the building of the house with materials furnished by the petitioner. Gen. Laws R. I. 1909, c. 257, § 1. The case is ruled by the case of Bassett v. Swarts, 17 R. I. 215, 21 Atl. 352. The excavation of the cellar was "constructive notice to all persons who may purchase the property, or may acquire any interest in it, that liens for labor and materials to be used in the construction of the building may attach and become entitled to priority." Bassett v. Swarts, supra, 17 R. I. page 218, 21 Atl. page 353. There was no evidence of any abandonment of the work of construction; there was simply a delay in the final completion of the foundation after the excavation of the cellar had been made; it is a fair inference from the testimony that the C. E. Barney Company, in 1912-13, through C. Edward Barney as its agent, was engaged in the sale and development of lots upon the plat in Norwood, Warwick, R. I., entitled "Commonwealth Plateau," and that the cellar which was excavated on the lot herein referred to, before it was sold to Lena Campbell, was one of a number of such operations upon said plat then being carried on with a view to sale of lots and building houses thereon for purchasers; for it appears that the first delivery of materials for the building of the house on this lot was made January 16, 1913, by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes petitioners at the order of C. Edward Barney the attention of counsel to the cases cited who was acting as agent for the owner of therein, and particularly to American Fire the lot in building the house thereon after Ins. Co. v. Pringle, 2 Serg. & R. (Pa.) 138, the sale of the lot to her, and that delivery Neilson v. Iowa Eastern R. Co., 44 Iowa, 71, of materials for use on this lot by the peti- and Pennock v. Hoover, 5 Rawle (Pa.) 291. tioners upon Barney's order was continued In the last two cases it appears that the exthrough January, February, March, and cavation for the foundation is held to be the April, 1913, and up to May 2, 1913, and that commencement of the building; and the rule notice of petitioners' lien claims was duly filed and notice given May 14 or 15, 1913. It appears therefore that there was no change of plan as to construction of the house upon the cellar which was excavated in September, 1912, and no abandonment of the work which was commenced by said excavation. to be deduced from the first two cases is that, although such commencement be made by a former owner and the building carried out by a subsequent purchaser, nevertheless the lienors for work done or materials furnished to the purchaser after the date of the mortgage are entitled to priority, where the We are of the opinion that the trial judge mortgage is given after the commencement of was clearly in error, under the case of Bas- the building. See, also, Mutual Benefit Life sett v. Swarts, supra, in his decree that Ins. Co. v. Rowand, 26 N. J. Eq. 389; ManGeorge M. Hamlen was not chargeable withhattan Life Ins. Co. v. Paulison, 28 N. J. Eq. notice at the time of purchasing said mortgage, and in decreeing priority to the mortgage lien. The petitioners' appeal is sustained; the decree of the superior court appealed from, so far as it decrees priority to the mortgage lien and awards costs to the said Fred M. Hamlen, executor, is reversed; the petitioners are entitled to have a decree in their favor for the sum of $224.49, as found by the decree, with interest from May 15, 1913, and for costs; and also that their lien is entitled to priority. A decree in accordance herewith may be submitted for our approval on Monday, June 18, 1917, at 10 o'clock in the forenoon. On Motion for Rehearing. 304. We find no reason for granting a rehearing in this case, and the intervener's motion for such rehearing is denied. The parties may be heard on the form of decree to be ordered by this court on Monday, July 2, 1917, at 10 o'clock in the forenoon. (40 R. I. 338) TABER v. TALCOTT et al. (No. 398.) (Supreme Court of Rhode Island. June 13, 1917.) 1. WILLS 629-CONSTRUCTION IN FAVOR OF VESTING OF ESTATE-TESTATOR'S INTENTION. The construction in favor of the vesting of estates immediately upon the testator's death, and which does not regard the remainder as being contingent, in the absence of a clear intent on testator's part to that effect, is subordinate to the fundamental principle of construction that the written expression of the testator, taken in its natural sense and use and applied to existing facts, must control. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1461, 1462.] 524(6)-CONSTRUCTION-VESTED OR CONTINGENT REMAINDER. Upon motion of intervener, Fred M. Hamlen, for rehearing. Counsel in this motion seems to intimate that this court has overlooked or ignored, in its rescript formerly filed, the case of Chace v. Pidge, 21 R. I. 70, 41 Atl. 1015, and that we have virtually overruled that case. That case was neither over-2. WILLS looked nor overruled. It does not concern any question properly raised in the case at bar. The case of Chace v. Pidge, supra, sim-in fee to "heirs" upon death of the survivor of ply relates to the question whether the notice of lien should not have named a party respondent, who had become the owner of the land after the time when the lienor fur-description of heirs at the time of death of the nished the materials for which the lien was claimed, and before the lien proceedings were commenced. There was no question of priority of lien as between lienor and mortgagee, but simply a question whether proper notice had been given, under our statute. We are of the opinion that the case of Chace v. Pidge has no bearing upon the question here A will directing trustees to convey property children, or upon the death of the wife in case she survived all of the children, after providing for payment of income to widow and children during their lives, held to give contingent equitable interests in fee to those persons answering last survivor of wife and children if he had just then died intestate and without issue, and not to grant vested equitable interests in fee to pertor's death. sons who answered description of heirs at testa [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1122.] 3. WILLS 687(6)—Trust EstatE-DIVISION Where a will provided for no difference in the disposition of real and personal trust property on termination of trust estate, it was the trustee's duty to divide personalty among the persons entitled in accordance with the statute of descent and distribution. [Ed. Note. For other cases, see Wills, Cent. Dig. § 1643.] |