Adams v. Buhler

• Decision Date: 31 March 1892
• Parties: ADAMS et al. v. BUHLER et al.
• Court: Indiana Supreme Court

131 Ind. 66

30 N.E. 883

ADAMS et al.

v.BUHLER et al.

Supreme Court of Indiana.

March 31, 1892.

Appeal from circuit court, Adams county; A. A. CHAPIN, Judge.

Suit by John Buhler and others against Lemuel D. Adams and others to foreclose a mechanic's lien. From a judgment for plaintiffs, defendants appeal. Reversed.

Francis & Merryman and E. A. Huffman, for appellants. Paul G. Hooper, E. G. Coverdale, and J. J. M. La Follette, for appellees.

ELLIOTT, C. J.

This case is in this court for the second time. Adams v. Buhler, 116 Ind. 100, 18 N. E. Rep. 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 cannot 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 subcontractor intends to secure a lien. Elliott's Supp. § 1690.¹ The subcontractoror 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, 51 Ind. 231;Deming v. State, 23 Ind. 416;Walter v....