Year: 1861

Decisions of the Supreme Court of the


state of Tennessee at Nashville, De-


ccmber Term, 1860.


Luter and Daniel vs.. Cobb and others.


Bill to enforce mechanics lien. Decree for the
complainant, and an appeal to this Court


In 1852 the complainants (who are brick masons)
built millhouse for McReynolds & Co.. in Clarks-
vile. The work was completed in the Fall of 1856,
except filling what are called the paddock holes,
and painting the walls and during the same Fall
McReynolds & Co. took possession of and commen-
ced using the building.


In the Spring of 1858, McReynolds & Co. mort
gagged said property, to secure money advanced to
them by others and in August, 1858, they failed
and thereupon, they made assignment OF all their
property including said millhouse and appurte-
nances, for the benefit of their creditors. During
the year 1868, said mill property was sold under
the mortgage deed of trust, and was purchased
by the defendant, Perdue.


In the Fall of 1853 (but not until after the sale
and purchase of the peoperty by Perdue,) the COM
plalnants caused the paddock holes to be stopped
and part of the walls to be painted And again IN
the Spring of 1882 they caused another part of the
walls to be painted and portion OF the Wills still
remain unpainted.


The amount due to complainants seems to be near
50 600. There is proof in the record of brick ma
sons who stated that building is not regarded by
the workmen as finished until the paddock holes are
filed and the walls penciled. 1t is also proved by
McReynolds who was examined by complainants.
that after McReynolds & Co. went into possession
of the property, they applied to the compliments to
finish the house and they agreed to do so, but
said they had not time then, but would do 80 when
they could get time. But little Importance Is to be
attached to the testimony Of McReynolds. His con-
duct in first attempting either to destroy the lien Of
complainants, or else to practice fraud on his
creditors for whose security he conveyed the Pro-
perty, places him in q suspicious attitude.


Upon the foregoing facts we feel constrained to
A. hn VIII record "
are led to the conclusion that the contract was re-
garded by both parties as completed and the work
finished in the Fall of 1885, when McReynolds S Co.
took possession of the houses and the lfiing work
done in the Fall of 1858 and the Spring OF 1883
was an after-though to give color to the lien set
up in the bill.


If il were to be conceded in this case that as be-
tween the complainants and McReynolds i Co., the
work might be considered as not finished until the
walls were pencied and the paddock holes stopped,
it by no means follows that it might be so regarded
as between the eompainants and creditors or pur-
chasers from McReynolds Co. From the fact
that the property had been taken possession of IN
the Fall of 1856 by McReynolds Co., and that the
complainants then gave it up and ceased to do any
more work upon it for period of more than twelve
months-the limitation of the ien-the creditors of
McReynolds Co., and purchasers from them, and
the public at large might well conclude that the
contract had been completed and the work hnlshed,
for both parties to the contract had so treated It.


And in this view, the complainants are estepped
as against creditors and bona ds purchasers to say
that the work was not finished in the Fall of 1856


This lien is peculiar one, essentially different
from most other liens known to the law, and must
be taken strictly. In many cases. 1t IS not OF re-
cord and rests upon mere verbal agreement, and
the time when il takes effect is often doubtful, and
dependent on parol evidence.


The limitation prescribed by the statute is in
tended for the benefit of the creditors of the own
ers of the property and purchasers from them to
protect them from fraud and injury by the action
of this secret lien.


Good faith on the part of the mechanic seeking to
avail himself of the lien is requisite and it is in
cumbent upon him to make out case clearly with
in the provisions of the statute.


Without undertaking to specify cases IN which
the continuance of the lien would not be affected
by necessary delays in the completion of material
parts of the work contracted to be performed, we
are are opinion of that where the contract is entire,
and the building is substantially finished, and treat
ed by all parties as completed-thOugh something
unimportant or not of the essence Of the contract
NAV remain undone-n the time limited by the
statute is suffered to eapse before the nOnessential
things are done and more especially If interven-
ing rights have attached in favor of third per-
sons in the meantime the lien cannot be successful
ly asserted.


But. in another aspect of the case, the bill must
fail. If the penciling the walls were essential
part of the contract without which it was not COM
plete or the work finished, then it would necessa-
rily result that the bill prematurely fled for
in point of fact the penciling of the walls has
never vet been finished and leaving part unt1n-
ished by the fault of the complanants themselves.
is as fatal as if the whole had been left Indone.


Decree reversed, and bill dismissed