Summary
holding that the parties could not prevail as bona fide purchasers as they had constructive notice of the mechanic's lien encumbrance
Summary of this case from In re ZLGH Development, Inc.Opinion
No. 4862.
Argued October 4, 1960.
Decided October 28, 1960.
1. A direction to a sheriff in a writ of attachment which distinctly expressed a purpose to secure a mechanic's lien in accordance with RSA 447:10 and conformed to the demands of RSA 509:5 so far as the nature of the case admitted was held sufficient to accomplish that purpose, where the sheriff did as directed, although the command to the sheriff due to insufficient space appeared on the second page of the specifications.
2. In determining the validity of a mechanic's lien attachment, the writ proper, the declaration and the lien command are to be considered together as a whole to ascertain its intended purpose.
3. Where a mechanic's lien attaching creditor has complied with the requirements of the statute (RSA 447:10; 511:3, 4) by causing to be left at the registry of deeds office the writ, the command to the sheriff and his return, the lien is perfected, and while the register failed to index the attachment, subsequent purchasers of the property are held to have constructive notice of the lien encumbrance and cannot prevail as bona fide purchasers.
4. The neglect of a register of deeds in not indexing a properly executed writ of attachment (RSA 478:4; 511:5) renders him liable on his bond RSA 27:1) for losses resulting therefrom to subsequent purchasers of the attached property.
PETITION, for a declaratory judgment under RSA 491:22 brought by the plaintiff against the several defendants, to determine the validity of an alleged special attachment made by the defendant Urbain Letendre on certain real estate located in Manchester and to adjudicate the rights and liabilities of the parties involved.
The case was submitted to the Superior Court on an agreed statement of facts. The Court found that the special attachment was void as against subsequent grantors, mortgagees or attaching creditors because of the failure of the attaching lienor to include in the precept or command portion of the writ the names of persons against whom the lien attachment was to be placed. The Court further found that the "form of notice" did not constitute notice to the plaintiff mortgagee and that the failure of the defendant, register of deeds Donat Corriveau, to index the lien attachment was not negligent or contrary to his statutory duties.
The defendant attaching lienor Letendre filed a motion to set aside the decree of the Court, to the denial of which, as well as to the various rulings of the Court, he excepted. The material portions of the agreed statement of facts are as follows:
1. That on January 8, 1957, J. Rudolph Bouthiette and Estelle J. Bouthiette, husband and wife, as joint tenants, were the owners in fee of certain real estate in Manchester, New Hampshire.
2. That on January 8, 1957, John Spillane, deputy sheriff of Hillsborough County, left an attested copy of a writ and of his return of attachment thereon at the office of the register of deeds of Hillsborough County, as appears in the record of proceedings in Civil No. 318, Urban Letendre v. Gilbert Corporation and J. Rudolph and Estelle J. Bouthiette, in the office of the clerk of Superior Court of Hillsborough County. The defendant Urbain Letendre claims, and the Manchester Federal Savings and Loan Association, Donat Corriveau and the Hartford Accident and Indemnity Company deny, that said writ and return effected a special attachment of said real estate set forth in paragraph 1 above.
3. That the said register of deeds, Donat Corriveau, by his deputies and agents, failed to enter in the grantor index a record of said special attachment of the said Bouthiette property but entered a general attachment in the grantor index of the real estate of the Gilbert Corporation.
4. That on March 5, 1959, J. Rudolph Bouthiette and Estelle J. Bouthiette conveyed said premises by warranty deed to Leo Lavigne and Norma A. Lavigne, husband and wife, as joint tenants, said warranty deed being recorded, and that on said date and prior thereto, the said Leo Lavigne and Norma A. Lavigne had no knowledge of said special attachment referred to in paragraph 2 above of the said Bouthiette property, but the defendant Urbain Letendre claims that the copy of the writ at the registry of deeds and the record of proceedings in Civil No. 318 in the office of the clerk of the Superior Court of Hillsborough County constituted constructive notice of the said special attachment referred to in paragraph 2 above.
5. That on March 5, 1959, the said Lavignes mortgaged said premises to the Manchester Federal Savings and Loan Association by mortgage deed recorded in the Hillsborough County registry of deeds, and that on said date and prior thereto the Manchester Federal Savings and Loan Association had no knowledge of said special attachment referred to in paragraph 2 above of the said Bouthiette property, but the defendant Urbain Letendre claims that the copy of the writ at the registry of deeds and the record of proceedings in Civil No. 318 in the office of the clerk of the Superior Court of Hillsborough County constituted constructive notice of the said special attachment referred to in paragraph 2 above.
6. That subsequent to March 5, 1959, the said register of deeds, by his deputies or agents, entered said special attachment referred to in paragraph 2 above of the said Bouthiette property in the grantor index under the names of J. Rudolph Bouthiette and Estelle Bouthiette.
7. That the said Hartford Accident and Indemnity Company is surety upon a statutory bond issued to Donat Corriveau, register of deeds, pursuant to RSA ch. 27.
8. That on June 2, 1959, the Hillsborough County Superior Court issued to the said Urbain Letendre judgment in Civil No. 318 in the amount of $1,428.84, no costs.
9. That on June 4, 1959, the Hillsborough County Superior Court issued execution upon the said Bouthiette real estate returnable the first Tuesday of December, 1959.
10. That the said Bouthiette appeared by counsel of record, Broderick, Broderick Loughlin, in said Civil No. 318.
11. That pending hearing on the merits of Equity #1348, Justice Robert Griffith on June 24, 1959, issued a temporary injunction restraining Thomas F. O'Brien, his deputies and agents, from levying upon the said execution.
12. That there are adverse claimants to the legal or equitable title to said premises.
13. That it is essential to determine the rights of the parties in this proceeding to avoid multiplicity of suits and actions.
14. That the register of deeds of Hillsborough County stamps the time of receiving a writ and return on the reverse side of the writ at the registry of deeds from the time shown by the sheriff on the following portion of his return: ". . . by leaving an attested copy of this Writ, and an attested copy of this my return endorsed by me thereon, at the office of Donat Corriveau Register of Deeds of said County of Hillsborough at 9 o'clock and 45 minutes of the Forenoon of the same day."
The Court made the following findings of fact and rulings of law:
"In addition to the agreed statement of facts the Court at the request of counsel for Urbain Letendre has examined the original writ in the case of Urbain Letendre v. Gilbert Corporation. It appears that the photostatic copy of the writ does not indicate that the command to the sheriff to especially attach the property of the Bouthiettes was in fact on a separate piece of paper and not a continuation of the second page of the specifications. However, the command was stapled to the second page of the specifications and is in fact an extension of page 2 of the specifications.
"The only place on the writ in which the Bouthiettes' name appears is in this attached piece of paper. The Court finds that the failure to include the name of persons against whom the lien attachment is to be placed either in the precept or command portion of the writ renders the attachment void as against subsequent grantors, mortgagees or attaching creditors.
"The Court further rules that the form of notice did not constitute notice to the petitioner and that the failure of the Register of Deeds to record the lien attachment was not negligent or contrary to his statutory duties.
"Decree for petitioner in accordance with the above findings and rulings."
Reserved and transferred by Griffith, J.
Booth, Wadleigh, Langdell, Starr Peters and Charles J. Dunn (Mr. Dunn orally), for the plaintiff.
Wiggin, Nourie, Sundeen, Nassikas Pingree (Mr. Nassikas orally), for the defendant Urbain Letendre.
Normand R. Pelletier (by brief and orally), for the defendants Donat Corriveau and Hartford Accident and Indemnity Company.
Thomas F. O'Brien furnished no brief.
The fundamental question before us is whether the writ of the defendant Urbain Letendre against the Gilbert Corporation was in proper form so that he obtained a mechanic's lien under RSA ch. 447 against the real estate of the Bouthiettes, on whose property he had done work for the corporation. Section 10 of RSA ch. 447, which controls the issue here, reads as follows: "Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues, the writ and return thereon distinctly expressing that purpose." It is in the agreed statement of facts that the sheriff, on January 8, 1957, over two years prior to the deed to the Lavignes and their mortgage to the plaintiff, left an attested copy of a writ and of his return of the special lien attachment thereon at the office of the register of deeds of Hillsborough County as required by RSA 511:3, which reads: "Real estate may be attached on a writ of mesne process by the officer leaving an attested copy thereof, and of his return of the attachment thereon, at the office . . . of the register of deeds of the county in which the real estate is situate." (Emphasis supplied).
The command to the sheriff to make the lien attachment was stapled to the second page of the specifications and was in fact an extension of this page. It is undisputed that it contained a clear and unequivocal order to the sheriff distinctly expressing a purpose to secure a mechanic's lien as directed by RSA 447:10. The attack on the validity of this proceeding to procure a lien centers on the fact that the command to the sheriff was inserted in the specification and therefore, the opposing parties argue, was not in the writ within the meaning of section 10, supra. Neither in section 10 nor elsewhere in the statute do we find any express direction as to the place where the command to attach and the statement of the purpose thereof should be inserted. Admittedly, to comply with the statute, the order to the sheriff must be distinctly expressed. Wurm v. Reilly, 102 N.H. 558; Mathers v. Connelly, 95 N.H. 107. Also, it is true that in the case of a statutory lien, the specified requisites must be strictly observed. Poirier v. Company, 84 N.H. 461.
RSA ch. 509, which contains forms for writs, has nothing specific to cover the present situation. Section 5 provides: "In cases where no form of process is prescribed the process shall be made comparable to the forms prescribed, so far as the nature of the case will admit."
An examination of the instrument involved here shows that as a practical matter it would have been necessary to attach the lien directive to the writ on a separate sheet in any event, since there was insufficient room to insert it in the space at the top of the writ reserved for the name of the principal defendant and the order to attach his goods. It should be noted that the action against the principal defendant, Gilbert Corporation is in personam. It is not against the Bouthiettes in personam, but is a proceeding in rem against their real estate, and the command to attach it is, as provided by RSA 447:10, in addition to the directive to attach the goods of the principal defendant.
As supporting their view that there was no command in the writ proper to make a special attachment as required by section 10, supra, the opposing parties rely upon the statement in the case of Bryant v. Warren, 51 N.H. 213, 216, that: "The declaration is no part of the writ, but merely an appendage to it, not containing directions for the officer, but information for the court and the opposite party. The officer's power is derived from the precept alone." An examination of this case shows that there was no command to attach anything anywhere in the writ or declaration, or especially to secure a lien, and no return by the sheriff that he had made such an attachment. In the case of Goudie v. Company, 81 N.H. 88, cited for the same proposition, there was no command anywhere in the instrument to make a special attachment. Other authorities relied upon are likewise distinguishable from the present situation on their facts. The dicta in Bryant as to the distinction between a writ and declaration was not necessary to the holding in the case, and while in a technical sense we speak of a writ and a declaration, it cannot be said as a practical matter that the two are necessarily separate and distinct except as to content. A writ without a declaration is ineffective to fulfill its ultimate purpose of affording a party an opportunity to gain relief. Superior Court Rule 17, 99 N.H. 609, 610. Obviously a declaration, unless a part of a writ, accomplishes nothing. Each is an integral and complementary portion of a whole, and to cause this whole to serve its intended purpose they must be considered together. In short, we believe the instrument here, including the writ proper, the declaration and the lien command, must be regarded as a whole and that RSA 447:10 so intended. We hold that the procedure employed by the defendant Letendre conforms to the demands of RSA 509:5 so far as the nature of the case admitted and that in a true legal sense a command and a sheriff's return distinctly expressing the purpose to secure a lien, within the meaning of RSA 447:10, appeared upon the writ and accomplished that purpose. The defendant Letendre's exception to the Court's contrary ruling is therefore sustained.
The plaintiff and the defendants Lavigne and Corriveau claim, however, that even though it is held that the writ was properly made out to secure the lien by attachment, it cannot bind bona fide purchasers without notice, since the special attachment was not indexed until after the transactions under which the plaintiff association and the defendants Lavigne's claim were consummated. There is force in this contention. However, for over two years prior to the conveyance of the property by the Bouthiettes to the Lavignes and their mortgage to the plaintiff, there had been on file in the registry of deeds an attested copy of the writ against the Gilbert Corporation containing the special attachment of the Bouthiettes' real estate. This instrument showed that a lien existed against this real estate. The defendant Letendre had done all that the statute required him to do by causing to be left at the registry of deeds office the writ, including the command to the sheriff and his return. RSA 447:10; RSA 511:3, 4. RSA 511:3, 4, supra, in contrast to the provisions dealing with conditional sales and chattel mortgages (RSA 361:10; RSA 360:19; RSA 361:5), does not place the burden on the one seeking to secure a lien to see to it that the writ is properly recorded (cf. General Motors c. Corp. v. Company, 84 N.H. 348, 351), but clearly states that if the writ and return are left at the register's office, that is sufficient. Since this is so, the parties claimant had constructive notice of the lien encumbrance and they cannot prevail as bona fide purchasers.
As the parties are in agreement that all issues raised by these proceedings should be decided here in order to avoid a multiplicity of actions, we consider finally the question whether the defendant Donat Corriveau, register of deeds, is liable on his bond to the plaintiff association. Lisbon School District v. District, 96 N.H. 290. By statute, the register is under a duty to record and index all attachments filed in his office. RSA 511:5. "The register of deeds shall receive, file and record . . . all deeds and instruments brought for that purpose . . . ." RSA 478:4. RSA 27:1 provides that each of a certain class of officials, including the defendant Corriveau, must give a bond to the effect that he "shall faithfully perform all the duties of said office, and shall discharge and satisfy all the liabilities for which he is by law officially answerable . . . including his liability for the official conduct, neglects and misdoings of his deputies." This bond is for the benefit of "any person who may be injured by the neglect or misconduct of the officers giving [it] or of their deputies." RSA 27:5.
In the present situation, it appears the defendant Letendre satisfied the statutory requirements for obtaining a mechanic's lien by causing a proper writ, command, and return to be left at the register's office. RSA 447:10. In order for the register to have stamped the time of receiving the writ and return on the reverse side of the writ, as he did here according to his custom, he had to look directly beneath the sheriff's return that he had "especially attached" the real estate in question to secure Letendre's lien. Because of the neglect of the register or his deputies, this instrument was not indexed and as a result the plaintiff association claims to have been injured. It follows that the defendant Hartford Accident and Indemnity Company is liable upon its bond to the plaintiff for such losses as it may suffer. Chase v. Bennett, 58 N.H. 428.
In summary, the defendant Letendre's mechanic's lien prevails over the rights of the Lavignes, to whom the Bouthiette property was conveyed, and those of the Association as mortgagee. The Superior Court should dissolve the temporary injunction restraining the sheriff from levying on the property, and the plaintiff has a right of action against the defendant company for any losses falling on it because of the failure of the register to properly index the special attachment. The order is
Exceptions sustained; remanded.
All concurred.