Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
In these consolidated mechanic's lien actions the Law Division, sitting without a jury, granted the plaintiff, a plumbing and heating contractor, who had not been paid for his labor and materials, general judgments against the respective defendant builders, Marut and Scarpa, who ordered the work done. There is no appeal therefrom. But it denied plaintiff special judgments against the defendant owners, Pasquale Durso and Maria Durso, his wife, both as to the subject lands and as to the buildings erected thereon by the aforesaid builders. Plaintiff appeals from the denial of the special judgments.
The facts are not in dispute and, with slight modifications not noteworthy here, are common to both situations. For brevity, we shall refer only to the factual pattern in the Marut case. Common questions of law are involved, so that resolution of the Marut case may be deemed equally applicable to the Scarpa action.
On March 7, 1958, by written contract, the Dursos agreed to sell to Marut and one Edward Szurko a parcel of their land in Readington Township, Hunterdon County, for $4,600, upon a deposit of $1, with the balance of $4,599 payable in cash on closing title fixed for September 17, 1958. The sellers permitted the purchasers to go into possession before closing title. There was no express written consent by the owner to erect the building. However, the parties contemplated that the purchasers would erect or, at least, begin to erect a one-family dwelling house upon the land before closing title. By the contract, the sellers agreed "if desired by Purchasers, to lend to Purchasers up to $10,000.00 in installments which money is to be used by Purchasers for materials and labor for the construction of a dwelling on the premises herein described." A schedule of installment payments during the progress of construction and down to completion of the building was set forth. In that schedule, one of the payments would be made when, inter alia , "rough plumbing installed"; another was due "when plumbing tub is installed"; and the final payment on completion required "plumbing fixtures." It was further provided:
"Whatever monies are loaned to purchasers shall be in accordance with the above installment schedule and shall be due and payable at the time of the actual closing of title." (Emphasis supplied)
As further evidence that the parties contemplated some construction before closing title, we note the following contract provision:
"Purchasers acknowledge that Seller is executing this contract based upon the personal credit and ability of Purchasers. Parties specifically agree that this contract may not be assigned and that any construction work to be done on the premises prior to closing will be done by Purchasers and their employees or said contractors." (Emphasis supplied)
Plaintiff contracted in writing with Marut for the installation of the plumbing and heating. Plaintiff filed a
Mechanic's Notice of Intention and sent a copy to the Dursos. No building contract has been filed. After completing the work on the Marut job and not receiving the amount due under his contract, plaintiff apparently duly filed his lien claim and instituted his mechanic's lien suit against Marut, as builder, and against the Dursos, as owners, with the result first above noted.
Title never closed. Although the reason is not made manifest upon the record, we assume that Marut defaulted in his contract with the Dursos, as he did in his contract with the plaintiff.
Plaintiff's right to a special judgment against the Dursos, in the form of a lien against the land to which they still have legal title, and/or a lien against the building thereon, depends upon the meaning of and applicability of the facts of this case to N.J.S. 2 A:44-68. That section provides:
"When a building is erected by a * * * person other than the owner of the land upon which it is erected, only the building and the estate of the * * * person so erecting such building shall be subject to the lien created by this article, unless erected with the written consent of the owner of such land * * *."
There is no doubt here that a building was erected by a person other than the "owner" of the land upon which it was erected. That person was Marut, a vendee in lawful possession before closing title by permission of the vendor. While a vendee under a contract for the sale of realty is the equitable owner from the moment the contract is made, we interpret the statute's use of the word "owner" to refer to its usual meaning of legal owner. So understood, we must now decide whether the building was erected "with the written consent of the owner of such land," namely, the Dursos. If it was, plaintiff would be entitled to a lien against the land. If not, such a lien against the land must be denied.
The last quoted words have been strictly construed by our courts in several prior decisions, ...