Barnett v. Stevens
| Decision Date | 03 December 1896 |
| Docket Number | 1,896 |
| Citation | 45 N.E. 485,16 Ind.App. 420 |
| Parties | BARNETT v. STEVENS ET AL |
| Court | Indiana Appellate Court |
16 Ind.App. 420. At 439.
Original Opinion of April 17, 1896, Reported at: 16 Ind.App. 420.
Petition for rehearing overruled.
OPINIONON PETITION FOR REHEARING.
Counsel for appellees, on petition for rehearing, have earnestly and ably argued the question involved in this appeal. On the theory that the material had been prepared and constructively furnished for improvement of the hotel property prior to the 20th of June, we may assume that appellees were then in position to enforce the lien for $ 435.00 against the appellant and the property. In other words, appellant was liable for the material so furnished and the amount was secured by the lien. This is on the theory that appellees had parted with the title to the material. They certainly could not retain the title to the material and enforce the lien therefor against Barnett and his property at the same time. In other words, if they owned the material after the 20th of June, then it is evident that the material had not, prior thereto, been, in fact, furnished by them in making the improvement.
Their right of action on the lien filed on June 20, was waived and lost by subsequently asserting title to the material and selling the same to Clarks. In other words, appellees cannot now maintain and enforce the lien filed on June 20, for material which they afterward sold to Clarks, although it was subsequently used in making the improvement. If they had filed a lien after they furnished the material for the improvement, they could have enforced it against Barnett and the property. In other words, after furnishing said material no notice of an intention to hold a lien on the property was filed. The effort, however, in this action is to enforce a lien filed on June 20, for material afterwards sold and furnished by appellees to Clarks, and subsequently used in the improvement of the hotel property.
The material must be furnished either actually or constructively for use in the improvement before the lien can be acquired. The lien can only be acquired by filing the notice as provided in the statute. It is true the material was furnished by appellees for the improvement, and that it was in fact used in the improvement of the hotel property, but it was so furnished and used after the lien sought to be enforced in this action was filed.
The fact that Barnett repudiated his contract with appellees, and that he at all times was the equitable owner of the property and that appellees furnished the material used in making...
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