Burr v. Kerchner

• Decision Date: 09 April 1888
• Citation: 6 S.E. 108,99 N.C. 263
• Parties: BURR et al. v. KERCHNER et al.
• Court: North Carolina Supreme Court

6 S.E. 108

99 N.C. 263

BURR et al. v. KERCHNER et al.

Supreme Court of North Carolina

April 9, 1888

Appeal from superior court, Columbus county; CLARK, Judge.

Action by Burr & Bailey against Kerchner & Calder Bros. and J. A Maultsby & Son, to enforce a mechanic's lien against property owned by the defendants Kerchner & Calder Bros Judgment for plaintiffs, and defendants appeal.

Lewis & Schulken, for appellants.

Haywood & Haywood and J. D. Bellamy, for appellees.

MERRIMON J.

The parties agreed upon and submitted the facts of the case to the court, as follows, for its judgment upon the same "That the plaintiffs furnished material and performed labor in the repair of the property, lot No. 6, in the town of Whiteville. The work and labor done and material furnished began on the 2d day of September, 1884, and ended on the 20th day of November, 1884. That a lien for the same was filed and recorded in due form of law on the 5th day of August, 1885 in the office of the clerk of the superior court of Columbus county. That on the ___ day of December, 1884, the defendants, Maultsby & Son, who were the owners of the property against which the lien was filed, and who alone contracted for the work and material performed and furnished, conveyed said property to the said Kerchner & Calder Bros., for value, and without notice of the plaintiffs' claim, and which conveyance (or deed) was duly recorded on the 2d day of December, 1884. That said deed was made and delivered before the filing of the said lien. That the amount of the work and the labor performed and material furnished is (sixty-one 86-100 dollars) $61.86. That the said J. A. Maultsby & Son had no right, title, or interest whatever in the land, lot No. 6, in the town of Whiteville when the plaintiffs' notice of lien was filed with the clerk of said court. That the said lien was filed in the time required by law. It is further admitted that all of defendants were duly served with process, and were before the court, and represented by attorneys, and this is an appeal from a justice's judgment." The court, upon consideration, gave judgment for the plaintiffs, as follows: "This cause coming on to be heard upon the statement of the facts found as a special verdict, and the court being of opinion that the plaintiffs were entitled to recover, now, on motion of John D. Bellamy, Jr., attorney for the plaintiffs, it is ordered and adjudged that the plaintiffs are entitled to and have a lien on the property described in the notice of lien for the sum of sixty-one 86-100 dollars, with interest from 17th September, 1884, and the costs of this action. And it is hereby ordered that all the right, title, and interest of the defendants J. W. Maultsby & Son in the said land and property which said defendants had therein on the 2d day of September, 1884, the time of the commencement of the furnishing of the material, be sold to satisfy said debt, interest, and costs, and that the defendants be foreclosed and barred of any interest therein acquired subsequent to said date, provided the debt, interest, and costs aforesaid be not paid within thirty days." From this judgment the defendants, having excepted, appealed to this court.

It is not denied that the plaintiffs were entitled to a lien upon the lot of land in question, as they claim; but it is contended that inasmuch as notice of such claim of lien was not filed by them in the office of the superior court clerk of the proper county, as required by the statute, (Code, §§ 1784, 1789,) before the defendants purchased the land from J A. Maultsby & Son, and they had no notice of the lien, therefore it did not attach to the land as against them, or in any way affect their title; and for the like reasons the defendants further insist that, at the time the plaintiffs filed their notice of lien, J. A. Maultsby & Son "had no right, title, or interest whatever in the land," having before that time sold and conveyed the same to them. So that the question we are called upon to decide is, did the lien on the land, when filed in the office of the clerk of the superior court, have relation back to the time it first arose? We are of opinion that this question must be answered in the affirmative. The first statu...