Adams v. Buhler

• Decision Date: 31 March 1892
• Docket Number: 15,733
• Citation: 30 N.E. 883,131 Ind. 66
• Parties: Adams et al. v. Buhler et al
• Court: Indiana Supreme Court

30 N.E. 883

131 Ind. 66

Adams et al. v. Buhler et al

No. 15,733

Supreme Court of Indiana

March 31, 1892

From the Adams Circuit Court.

Judgment affirmed.

J. T France, J. T. Merryman and E. A. Huffman, for appellants.

P. G Hooper, E. G. Coverdale and J. J. M. La Follette, for appellees.

OPINION

Elliott, C. J.

This case is in this court for the second time--Adams v. Buhler, 116 Ind. 100, 18 N.E. 269. It is now contended that the notice of an intention to hold a lien upon the real estate described is insufficient. Counsel say of the complaint: "We incline to think that it fails to show a sufficient notice filed with the recorder to constitute a lien against appellants' property, in that the notice having shown that the labor was performed for a contractor and not for the owner, we think it should have shown that the proper antecedent steps had been taken by notifying the appellants at or before the time of performing the labor." The contention of counsel can not prevail. The law prescribes what the notice filed with the recorder shall contain, and it does not require it to state that the owner was notified that the material man or sub-contractor intends to secure a lien. Elliott's Supp., section 1690.

The sub-contractor or material man must, under the statute of 1883, notify the owner, but he is not required to state that fact in the notice filed with the recorder.

The appellants insist that the trial court erred in admitting in evidence the record of the notice given by the appellees. They support their position by the argument that the notice was not recorded in the proper record, inasmuch as it was recorded in the "Mechanics' Lien Record," and not in the "Miscellaneous Record." Their claim is that there is in law no such record as that first named. The appellees meet this argument by asserting that the filing of the notice creates the lien, and in this they are sustained by the case of Wilson v. Hopkins, 51 Ind 231. But this assertion does not fully answer appellants' argument, for it may be conceded that the lien attaches when the notice is filed, and yet not necessarily follow that the record is admissible to prove the contents of the notice. Proving the filing and proving the contents of the notice are essentially different things. The question, therefore, is, was it competent to prove the notice by the entry in the Mechanics' Lien Record? It is established that the recording of an instrument is effective only when the recording is made by the proper officer and in the mode prescribed by law. Gossett v. Tolen, 61 Ind. 388; Wilson v. Hopkins, supra; Deming v. State, ex rel., 23 Ind. 416; Walters v. Hartwig, ...