Macondray v. Simmons

By the Court,

Bennett, J. The papers in this cause were consumed in the late fire which occurred in this city. According to our recollection, the facts of the case were as follows :— Macondray furnished certain materials for a building, which Simmons put up, previous to the adoption of the common law. An attachment was issued against the property for the purpose of enforcing the lien, and on the same day on which the attachment was issued, Simmons conveyed the property to the other defendant Knowles. The complaint alleged the amount of the indebtedness of Simmons for the materials furnished by the plaintiff, and charged that the conveyance to Knowles was fraudulent, insisted upon the plaintiff’s having a lien upon the [394]buildings, and charged that Knowles had notice of such lien at the time of the conveyance to him, and prayed that the conveyance to Knowles might be set aside as fraudulent, and the premises sold to satisfy the lien. The defendants took issue upon the several allegations in the complaint, and, at the trial, the plaintiff proposed to prove that the conveyance to Knowles was made in fraud of the creditors of Simmons, and insisted that the conveyance should be set aside, and the premises sold to satisfy his lien. The court held that no lien existed, and excluded the proposed evidence to show fraud in the conveyance to Knowles.

Two propositions are presented by the case on the part of the plaintiff; 1st, That he had a lien upon the premises under Mexican law ; and, 2d, That even though he had no such lien, he was entitled to inquire into the validity of the conveyance to Knowles.

On the first point we think the court decided correctly. We think there was no lien. We find it laid down in the Mexican books, that he who loans money for the purpose of building, repairing, or supplying a ship, house, or other building, has a tacit lien thereon for the reimbursement of his loan. (Escriche, Dic. de Legislacion, Art. “ Hipoteca Legal;" 5 Feb. Mej. page 368; 3 Sala Mej. 115; 1 White's Rec. 140.) But we do not find it laid down in either of the authorities above cited, which are all strictly works on Mexican law, with the exception of White's Recopilación, that a person who furnishes materials for the erection of a building, has any lien. Kor is any such doctrine to be found in the citation of the plaintiff’s counsel from the Partidas, either at the page cited (page 878, 2d vol. Part.,) nor on pages 970 and 971, where this subject is more particularly treated of. It is true that it. is laid down in Browne's Civil Law, (1 vol., page 207,) that the repairer of a house has a lien thereon, but even this does not support, the plaintiff’s case ; while in Mackeldy, (page 382,) it is said that a lien does not exist in favor of one who has merely furnished materials or labor on credit for the restoration of a building. There is nothing, therefore, in the Mexican law, which countenances the plaintiff’s