Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-06-28

general rule above stated, unless we are com
PEELED to do so by very plain language.
| Now, our statute does not in terms declare
that these liens shall operate from the com
mencement Of the work. II does so, in effect
| In n certain class of cases by providing that
these liens shall be preferred 10 all judgments,
mortgages, deeds Of trust, liens and fncum-
brances attaching subsequently to the CON-
mencement of The work. As against these the
liens do operate from the commencement OF
the work and have a retroactive preference
and priority. The owner is ferewarned that
these liens may be filed at any time up to three
months after the completion Of the work and
he shall not be allowed to forestall them by in
numbering the property in the meanwhile.
But this il the utmost extent to which the law
goes in giving to the lien q relation backward
and retroactive operation, and all this is en-
tirely inapplicable to the relations between the
builder and his subcontractor or material men.
As TO any preferences between them the statute
is silent. but inferentialy we can determine
how far such preferences must exist.
The owner has undoubtedly right to bind
himself to the builder to pay the contract price
IN installments as the work progresses. Build
ing operations would otherwise be impossible
to Hen on the property for the whole
NOT have p'S Distinct ens Tor ths san
debt; and as the law also gives the subcon-
tractor right OF lien, II would seem'to follow
that upon fling his notice of lien he intercepts
so much of the contract price the builder ia
to pay him, and to that extent displaces the
builders lien or right of lien and becomes
ienor in his place. In this way and TO this ex-
tent he acquires preference over the builder.
But there is nothing in the statute which re-
quires US to hold that lien 80 acquired By the
sIbcontractor has a retroactive priority over
the builders right to his periodical payments
which mGrured before notice Of lien was fled
The owner 10 forbidden to cucumber the prop
erty to strangers to the prejudice Of either bis
contractor or the latters subcontractors, but
be is not forbidden to make his periodical pay
ments to his contractor, as he has agreed to do
for otherwise the work could not go on--un-
less such payments are arrested in advance by
the notice of lien.
BETWEEN OWNER AND BUILDER.
As against the owner and the builder the law
gives no backward relation to the lien of sub
contractor or material man and there is nothing
in the statute 70 take II out Of the general rule
that the lien should operate only from the CIV
Ing of notice on the record. And unless con-
strained so to do by very explicit language we
certainly wouldnot give to the statute an in
depreciation that would work such manifest in
justice as that which is commended for
If the lien had been given expressly from the
date OF fling the notice, but without any re-
strict1on as to amount, We would have had TO
consider the grave question how far such an
enactment would be constitutional. But fortu-
nately. rs If to meet this very difficulty the
second proviso forbids the lien to be enforced
for greater sum than the original contract.
The idea was advanced in argument, with
slight show of authority for it. that the con-
tract makes the builder an agent Of the owner
to bind his property by subcontracts, express
or implied.
We do not admit the Justice Of this view.
There Is no privity between the owner and the
subeontractor and the rights Of the latter as
against the owner are purely statutory and do
not grow out Of any privity of contract
Otherwise the owner would be bound by every
admission and declaration of the contractor in
his dealings with his employees and subcon-
tractors and would be committed to obligations
which he could not anticipate, to persons whom
he never heard of. The court Of appeals of
Maryland In Treusch & OConnor agt Shryock
ct al. 81 Nd, 162, very properly, as we think,
rejects this theory of agency.
Again. it is sought to throw upon the owner
the burden Of protecting himself by exacting
security from the builder and by OBTAINING the
price until be is satisfied that oil the subordi-
nate parties in interest are paid.
An EXTRAORDINARY PRIVILEGE
This seems wholly unreasonable. A very
special and extraordinary privilege is given to
subcontractors and material men Of burdening
the property of aperson with whom they have
no priv1ty of contract upon the simple condi-
ton Of filing notice in the clerks Office,
which costs no time or trouble and saves the
rights OF all parties. Surely the burden ought
to be upon them of asserting their statutory
rights so diligently as TO avert loss to anybody.
The subcontractor necessarily knows that
there Is a contract and is put upon inquiry as
TO its terms. But the owner is not informed as
TO the existence OF subcOntracts or as to deal
lngs with material men and laborers, and ii
would be imposing most onerous duty on him
to hold that he cannot make payment
to his builder without first canvassing
the town to ascertain who have
furnished materials or labor to his
house and converting them oil to see that his
contractor does not withhold their dues from
them. This would be equivalent to holding that
he Is bound to know and ascertain ut his own
risk who all these parties are before he receives
any notice from them. 1t is uncomfortable that
any Legislative body ever intended to make the
operation Of building SO hazardous
The statutes OF the different states on the
subject differ, and 1t is therefore easy to find
cases strictly analogous to thSpresent; but we
conceive the general propositions we have laid
down to be sustained by the following cases:
Carman agt- Mclncrow, 10 n. Y. ~; Doughty
aSt. Devlin, Z. d. Smith, $780, Dore agt Sell
lers, "a Cal, $50; Blythe agt. Poultnev. 81 Cal.
2S9; Henley agt Wadsworth. IS CAL 1856; Rem
ton agt. Murray, 40 Cal, 1856; Spalding act.
Thompson, q Conn, 373.
The decree Is therefore reversed as to the
liens which were sustained and affirmed as to
the Others.