Opinion
12-30-1898
LEARY v. LAMONT et al.
Elwood S. Leary, for complainant. F. F. Guild, for defendant Murphy-Hardy Co. John A. McGown, for defendant Burrell and others. A. F. Skinner, for defendant Robertson.
Bill by John N. Leary against John Lamont and others. Heard on bill of interpleader.
Elwood S. Leary, for complainant.
F. F. Guild, for defendant Murphy-Hardy Co.
John A. McGown, for defendant Burrell and others.
A. F. Skinner, for defendant Robertson.
EMERY, V. C. The decision of the questions reserved at the hearing of the cause is to be governed by the recent decision of the court of errors and appeals in the case of Slingerland v. Binns (Feb., 1898) 39 Atl. 712. First, under this decision the claims of laborers and material men, upon which notices under the lien law were served prior to the time for payments under the contract, have preference, under the law of March 14, 1895 (P. L. 313), over orders given by the contractor and served on the owner prior to this date. Second, as between these preferred claimants, the laborers' claims are expressly preferred, under section 7 of the statute. In the third place, as between each other, the laborers who are entitled to preference under section 7 are to be paid pro rata, if the amount is insufficient to pay in full all these claims upon which notices were given before the liability matured under the contract. I take this to be a logical consequence of the decision in Slingerland v. Binns, which proceeds upon the view, expressly declared in the opinion of the court, that the laborers entitled to serve the statutory notice have an inchoate lien upon the liability of the owner under the contract until that liability matures according to the contract, which inchoate lien becomes perfect on the service of the notice before the liability matures. Under the previous law, no lien—inchoate or other—arose until service of the notice, and therefore priorities of lien were to be determined by the date of the service; but as the law of 1895, according to the above decision, gives an inchoate lien before service, which is afterwards perfected by notice, all the inchoate liens must exist, as such, either at the same time, or as fast as the labor and materials are furnished. The mere service of notice in such cases does not create the lien, which is now, as I understand the decision in Slingerland v. Binns, a statutory, inchoate lien as soon as the labor is performed or materials furnished; and, inasmuch as the statute makes no clear provision for preference by reason of subsequent service of notice, all the inchoate liens which afterwards become perfect are chargeable pro rata on the fund, without regard to the date of service of the notice which perfects the lien. This construction applies to the inchoate lien for the contract price the principle of concurrence among lien claimants, which is expressly declared by section 24 of the lien act (Gen. St.p. 2068) as to the liens upon the lands. Decree for payment of the claims for labor in accordance with these views will be advised.