Albrecht v. The C. C. Foster Lumber Co.
| Decision Date | 16 December 1890 |
| Docket Number | 14,506 |
| Citation | 26 N.E. 157,126 Ind. 318 |
| Parties | Albrecht et al. v. The C. C. Foster Lumber Company |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
Judgment affirmed.
J. N Scott, for appellants.
S. M Shepard and C. Martindale, for appellee.
The appellee's cause of action is based upon the general theory that it is entitled to enforce a lien against the real estate of the appellant described in the complaint, and it prays a decree of foreclosure.
The point made against the complaint that the notice shows that the appellee claimed a lien for a greater amount than was owing to it, is without substantial merit. A mistake of that character, which has not operated to the prejudice of any one, will not defeat a lien. Kiel v. Carll, 51 Conn. 440; Smith v. Norris, 120 Mass. 58; Harrington v. Dollman, 64 Ind. 255.
The failure to state in the notice of the intention to hold a lien, that the claim was due, did not impair the notice, as between the original parties. According to the rule laid down in Wade v. Reitz, 18 Ind. 307, and approved in Schneider v. Kolthoff, 59 Ind. 568, third persons may treat a claim as due where there is no statement in the notice that credit has been given. This is only giving effect to the natural presumption, as well as to the legal inference, for where property is sold and delivered the courts assume, until the contrary appears, that the purchaser is to pay for it at once. As between the original contracting parties there is little or no reason for stating in the notice that the claim is due. The notice is not required for the purpose of informing the immediate parties of the terms of their contract--since the presumption is that they know what the terms are--but for the purpose of informing the one party that the other intends to acquire a lien under the statute. Our conclusion, that the lien in such a case as this is not, as between material men and the owner, lost by a failure to state whether credit was, or was not, given, is sustained by authority. Hills v. Ohlig, 63 Cal. 104; Doane v. Clinton, 2 Utah 417.
A court of equity has jurisdiction to foreclose liens by a decree of foreclosure. One of the maxims of equity jurisprudence is that "Equity acts specifically," and under this maxim courts of chancery have assumed jurisdiction to foreclose liens upon real property. Where a court of chancery has rightful jurisdiction for one purpose, it retains it for all legitimate purposes; and, under this familiar rule, it will render a money judgment where it is an incident of a decree against specific property. Feder v. Field, 117 Ind. 386, 20 N.E. 129; Field v. Holzman, 93 Ind. 205; Wood v. Ostram, 29 Ind. 177.
The common law courts did not possess jurisdiction to render specific decrees, and could not, therefore, decree the foreclosure of liens. Goble v. Gale, 7 Blackf. 218; Olmsted v. McNall, 7 Blackf. 387; Close v. Hunt, 8 Blackf. 254. The doctrine that only courts of chancery can decree foreclosures of mechanic's liens has been given forcible application by this court. Ainsworth v. Atkinson, 14 Ind. 538; Snell v. Mohan, 38 Ind. 494; Richards v. Reed, 39 Ind. 330; Doyle v. State, ex rel., 61 Ind. 324; Brown v. Goble, 97 Ind. 86. The trial court did right in denying a jury trial, for a suit to foreclose a lien against real property is one of equity cognizance, and such it was long before our statute of 1881 went into force.
A verbal notice to the owner that a material man or mechanic intends to hold a lien upon the property is sufficient. Vinton v. Builders, etc., Ass'n, 109 Ind. 351, 9 N.E. 177; Wesley v. Searight, 113 Ind. 316, 15 N.E. 598. The question whether the evidence sustains the finding that notice of an intention to hold a lien was given the property-owner is a close one, but settled rules require us to solve it in favor of the decision of the trial court, for we think that there is evidence from which it may be inferred that a verbal notice was given. Where there is such evidence we must sustain the finding of the trial court, for it is a familiar rule that proof of circumstances warranting a given inference is sufficient in civil actions. Indianapolis, etc., R. R. Co. v. Collingwood, 71 Ind. 476; Louisville, etc., R. W. Co. v. Balch, 122 Ind. 583, 23 N.E. 1142.
The property-owner desired to obtain money from a building association to pay for the house she was...
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