Hendricks v. Fields

Citations

• 26 Va. 447
• 26 Gratt. 447

Syllabus

<p>In March 1866 F entered into a written contract with H to erect for H on land in the country, certain buildings. The buildings were completed, and on a settlement H owed him $1321.17, for which he gave to F his two notes dated the 4th of July 1867, one payable one day after date, and the other by the 1st of November 1867. On the 10th of January 1868 F had the contract recorded in the clerk’s office of the county. In May 1868 F filed his bill against H, claiming a mechanics’ lien on the land and buildings under his contract; and on the 8th of October the bill was taken for confessed, and a decree made that H should pay the amount due F; and if this was not done by the 15th of November, then the land and buildings should be sold &c. No sale was made under this decree, and before it was rendered, viz : on the 1st of October 1868, H conveyed the land to S, with general warranty, and other covenants of title. And S thereupon, in the name of H, moved the court to set aside the decree, as being erroneous. This motion was heard and overruled on the 31st of May 1873. And from this decree, and also the decree of the 8th of October 1868, S, in the name of H, obtained an appeal to this court. The cause came on here upon a motion by the appellee to dismiss the appeal, and also on the merits. Held :</p> <p>1. S is entitled to prosecute an appeal in the name of H, for the benefit of S, for the purpose of having the decree of the 8th of October reversed, and the said land discharged of the claim to said lien.</p> <p>2. The decree of the 8th of October 1868 is not a final decree, and therefore, though it was rendered more than two years before the petition for the appeal was presented, yet the said petition was not barred by the limitation prescribed by the Code, ch.. 178,2 3, p. 1136.</p> <p>3. On the 1st of March 1866, when the contract between H and F was entered into, the only mechanics’ lien was that provided for in the Code of i860, p. 567, ch. 119, 2 2, which provided for