Heidritter v. Elizabeth Oil-Cloth Company

E. A. Day and John R. Emery, for plaintiff in error.

John F. Dillon and J. T. Richards, for defendant in error.

This is an action of ejectment for the recovery of certain real estate and the improvements thereon, situated in the City of Elizabeth, in New Jersey, brought by the plaintiff in error against the defendant in error in the supreme court of that state, and removed thence into the circuit court of the United States on the ground that the case was one arising under the constitution and laws of the United States. The cause was submitted to the court, the intervention of a jury having been waived, and a judgment rendered for the defendant below. The facts appear by special findings of the court and bills of exception duly taken to its rulings. So far as material, they are as follows: Both parties claim title under Charles L. Sicher, who, being the owner of the premises, commenced the erection thereon of a building which he subsequently used as a distillery. The plaintiff claims under a deed from the sheriff of Union county, in which the premises are situated, dated September 24, 1873, made to him as purchaser at a sale under two special writs of fieri facias, issued upon two judgments against Sicher: one in favor of August Heidritter for $1,711.22, signed June 14, 1873; the other in favor of Ferdinand Blancke for $272.95, signed June 18, 1873. The actions in which these judgments were severally rendered were commenced, one on February 21, 1873, the other on March 15, 1873. They were, in form, actions of assumpsit, the declarations in each, however, containing additional averments, showing that they were brought to enforce mechanics' liens upon the building and lot constituting the premises in controversy, according to the provisions of an act of the legislature of New Jersey of March 11, 1853, and the supplements thereto, the premises being specifically described and the accounts for labor and materials on which the actions were founded being set out, in the one case beginning June 21, 1872, in the other, September 7, 1872. The respective claims for these liens had been filed, pursuant to the statute, in the office of the clerk of the county: one on February 21, 1873; the other on March 13, 1873.

This statute of New Jersey-Nixon, Dig. (4th Ed.) 571; Rev. N. J. 668-provided for the enforcement of the claim filed agreeably to its provisions upon any lien created thereby by suit in a court of the county where such building is situated, to be commenced by summons, in a prescribed form, against the builder and owner of the land and building, containing a statement that the plaintiff claims a building lien for the amount set forth on the building and lands of the defendant described as in the claim on file. Two modes of service of this summons are specifically described in the act: one is called actual service, meaning thereby personal service on the defendant, or, if he cannot be found in the state, by affixing a copy thereof on such building, 'and also by serving a copy on such defendant personally, or by leaving it at his residence ten days before its return.' The other is styled legal service, which is, in case the defendant resides out of the state, by affixing a copy on such building and sending a copy by mail, directed to him at the post-office nearest his residence, or, in case his residence is not known to the plaintiff, then by affixing a copy to such building, and publishing it for four weeks in a newspaper circulating in the county. The judgment in the action, if for the plaintiff, in case the defendant has been actually served with the summons, shall be general, with costs, as in other cases; but when only legal service of the summons has been made, judgment against the owner and also against the builder 'shall be specially for the debt and cost to be made of the building and lands in the declaration described; and in case no general judgment is given against the builder, such proceedings or recovery shall be no bar to any suit for the debt, except for the part thereof actually made under such recovery.' When the builder and owner are distinct persons, they may make separate defenses,-the former that he does not owe the money, the latter that the building and land are not liable to the debt; 'and, in such case, it shall be necessary for the plaintiff, to entitle him to judgment against the house and lands, to prove that the provisions of this act requisite to constitute such lien have been complied with.' 'When judgment is entered generally against the builder, a writ of fieri facias may issue thereon as in other cases; and when judgment shall be against the building and lands, a special writ of fieri facias may issue to make the amount recovered by sale of the building and lands; and when both a general and special judgment shall be given, both writs may be issued, either separately or combined in one writ.' It is further provided that under such special fieri facias the sheriff shall advertise, sell, and convey said building and lot in the same manner as directed by law in case of lands levied upon for debt, and that the sheriff's deed shall convey to the purchaser the estate of the owner in the lands and in the buildings which he had at any time after the commencement of the building, subject to all mortgages and other incumbrances created and recorded or registered prior thereto. The building upon the premises in controversy was commenced June 25, 1872, from which time it is conceded the mechanics' liens dated, to enforce which the judgments were rendered.

It appears that the summons in the two cases was legally, but not actually, served upon Sicher, his residence not being known to the plaintiff, by affixing a copy thereof to the building, and by a publication for four weeks of a copy. At the times when these claims for mechanics' liens were filed in the office of the county clerk, and when the actions were commenced to enforce them, the premises in controversy were in the actual custody and possession of the United States marshal for the district of New Jersey under the following circumstances. The building erected by Sicher on the premises in controversy was intended for and was used by him as a distillery, when, on January 24, 1873, they, with the contents of the building, were seized by the collector of internal revenue for the Third collection district of New Jersy, for a forfeiture incurred under the laws of the United States. On February 4, 1873, an information to enforce that forfeiture was filed in the district court of the United States for the district of New Jersey, and on February 5, 1873, process of attachment was issued to the marshal, who made return of the same on February 19, 1873, that he had taken possession of the property therein named, including the premises in controversy. On February 25, 1873, a sentence of condemnation and forfeiture to the United States was passed, and a writ of execution ordered to issue to sell the same. On March 10th following that writ was issued, and was returned June 9, 1873, by the marshal, with the indorsement thereon that he had sold the premises to one Edward G. Brown. The proceeds of the sale, after payment of costs, were ordered to be paid to the collector of internal revenue for the use of the United States, and the marshal, on May 29, 1873, executed and delivered a deed to the purchaser, conveying the lands and tenements in fee-simple. The sale took place on May 22, 1873. The defendants in error, by mesne conveyances, have acquired the title of the purchaser at this sale.

[Argument of Counsel from pages 298-299 intentionally omitted]

MATTHEWS, J.