336 Mass. 414

September 25, 1957 - December 4, 1957

Hampden County


Failure to record an attested copy of the subpoena in a suit in equity brought under G. L. (Ter. Ed.) c. 254, Section 5, by a materialman to enforce a subcontractor's lien acquired under Section 4 defeated the lien even if all the information furnished by the subpoena was contained in a bond to dissolve the lien which was given under Section 14 and accepted by the court and recorded.

BILL IN EQUITY, filed in the Superior Court on December 19, 1951.

The plaintiff appealed from a final decree by Hudson, J., after hearing on a master's report.

Charles D. Sloan, (Samuel L. Thompson with him,) for the plaintiff.

Henry A. Moran, Jr., for the defendants Whitesman.

Page 415

SPALDING, J. This bill is brought by a subcontractor, hereinafter called Valentine, to establish a lien under G. L. (Ter. Ed.) c. 254, Section 4, for materials furnished to the defendant Thibeault, the principal contractor, for the construction of a house on land of the defendants Herman R. and Matilda C. Whitesman situated in Longmeadow.

The case was referred to a master whose report was confirmed by an interlocutory decree. Findings of the master here pertinent are these. On July 6, 1951, Thibeault entered into a contract with the Whitesmans for the construction of a house. On August 6, 1951, Thibeault entered into a subcontract with Valentine under which Valentine was to supply materials for the Whitesmans' house. On the same day Valentine recorded a notice of its contract with Thibeault and on the following day mailed a copy of the notice to the Whitesmans. Thereafter materials were delivered by Valentine to the Whitesman job. Although substantial payments were made from time to time by the Whitesmans by means of checks drawn to both Valentine and Thibeault, Valentine received only a small portion of the proceeds. [Note 1]

On December 5, 1951, within thirty days of the completion date of the subcontract, Valentine recorded a statement, as required by G. L. (Ter. Ed.) c. 254, Section 8, of the amount due it. According to the statement, which was found to be just and true, that amount was $7,129.35. On December 19, 1951, this suit was commenced. It is agreed that no attested copy of the subpoena issued in this suit was ever recorded. On January 4, 1952, a bond to dissolve the lien (see G. L. [Ter. Ed.] c. 254, Section 14) which is the basis of this claim was executed by the Whitesmans; it was accepted by the court on January 7 and recorded on the following day.

A final decree was entered establishing that Thibeault was indebted to the plaintiff in the sum of $7,129.35 plus interest, or a total of $9,117.48, and ordering that the bill as against the Whitesmans be dismissed. Valentine appeals.

Section 5 of G. L. (Ter. Ed.) c. 254 provides that "An

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attested copy . . . [of the subpoena of the bill in equity brought to enforce the lien] shall be filed in the registry of deeds and recorded as provided in section nine" (emphasis supplied). No such subpoena was recorded here and the Whitesmans contend that this omission is fatal. For reasons set forth in Valentine Lumber & Supply Co. v. Thibeault, ante, 411, this contention must be sustained. And for reasons also set forth in that decision Valentine's contention that the recording of the bond to dissolve the lien satisfied the subpoena requirement cannot prevail.

Decree affirmed with costs of this appeal.


[Note 1] Because of the view we take of the case, we need not consider the effect of these payments.