Opinion
No. 3064
Decided April 4, 1939
The statutory lien on real estate for water charges continues "for one year from the last item charged" and must be enforced by suit against the owner. (Laws 1927, c. 71, s. 1).
Hence the lien cannot be enforced against a mortgagee of the premises where no suit had been instituted against it within the one year limitation.
If before judgment was rendered in favor of the city against the owner, foreclosure had become perfected, the mortgagee cannot be joined as a defendant after the period of limitation has expired.
ACTION, to enforce a statutory lien on real estate for water charges. The water was supplied while the defendant Carpenter was in possession of the premises and their owner, subject to a mortgage to the defendant bank. When the action was brought the bank had taken possession under foreclosure proceedings, but the mortgagor's equity of redemption had not expired. In the action the real estate was specially attached to secure the lien.
Carpenter was the sole defendant named in the writ. The plaintiff obtained judgment and took out execution. Before the judgment was rendered the bank's foreclosure had become perfected. The execution was returned as levied upon Carpenter's equity of redemption and as satisfied. Between the judgment day and that of the execution sale, and more than three years after the date of the writ in the action, the plaintiff moved that the bank be made a party defendant.
The question whether the lien is enforceable against the bank's title was transferred without ruling by Johnston, J.
George R. Scammon, by brief, for the plaintiff.
Hughes Burns and Charles F. Hartnett, by brief, for the defendant bank.
After the judgment against Carpenter was entered, the action was no longer pending, and the propriety of the subsequent motion that the bank be made a party defendant seems doubtful. But if the grant of the motion may be sustained, the bank did not become a party to the action until the motion was filed. Lewis v. Hines, 81 N.H. 24. The statute (Laws 1927, c. 71, s. 1) enacted that the lien for water charges should continue "for one year from the last item charged" for water and "may be enforced by suit . . . against the owner or owners of the real estate." It follows that so far as the lien extended to the bank's interest, it was lost by failure to secure it by suit against the bank within the time limit prescribed by the statute. The only method to enforce the lien being by suit and no suit to enforce it as to the bank's interest being instituted prior to the motion, the statutory limitation of time became operative to bar the plaintiff in respect to such interest. No personal liability of the bank can be invoked, and since its property is not held by the lien, the plaintiff's case fails, without consideration of other points of defence.
The bill in equity brought to supplement the action as an aid to perfect the lien is of no service to cure the bar. It was not brought until long after the action and no attachment was made in connection with it. It could have no retroactive effect upon the time when the bank was in any way sued. It should be dismissed and judgment ordered for the bank in the action.
Ordered accordingly.