Foushee v. Grigsby
| Citation | 75 Ky. 75 |
| Parties | Foushee, & c. v. Grigsby & Robinson, & c. |
| Decision Date | 24 March 1876 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM FAYETTE CIRCUIT COURT.
G. B KINKEAD, Z. GIBBONS, J. G. CARLISLE, For Appellants,
Mechanics' Lien Law, Myers's Supp., p. 302.
Houck on Liens, section 75.
Perry on Trusts, section 219.
Story on Prom. Notes, section 197.
2 Duv 586, Trustees Caldwell Ins. v. Young, & c.
1 B Mon. 257, Nazareth, & c. v. Lowe and wife.
5 Bush 304, Gere and wife v. Cushing.
4 Met. 317, Brown v. Story's adm'r.
3 Minn. 93, Farmers' Bank v. Winslow.
4 Minn. 20, Knox v. Starks.
5 Littell, 62, Hunter v. Simrall.
3 Mon. 312, Cotton v. Ward.
4 Mon. 196, Barbour v. Whitlock.
| 3 How. (Miss.), 881. |
| 7 Cal. 358. | 22 Mo. 147. | 6 Ind. 235. |
H. MARSHALL BUFORD, JOHN B. HUSTON, For Appellees,
5 Bush, 304, Gere and wife v. Cushing.
The appellants in this case were employed by Grigsby & Robinson to make improvements, in the way of additional buildings and otherwise, to their hotel in the city of Lexington. They are now, as mechanics and material-men, attempting to enforce their liens upon the property under the provisions of the mechanics' lien law of 1858. (Myers's Supplement, page 300??)
They commenced their work upon the building in the fall of 1865, and completed the improvements in the summer of 1867. Some of the mechanics completed their portion of the work prior to that time.
During the progress of the work upon the building the appellee, Huston, and his partner, Downey, became liable, as the sureties of Grigsby & Robinson, for several thousand dollars; and upon assuming this liability the firm executed to Huston & Downey a mortgage on this same property, to indemnify them as sureties. This mortgage was executed in January, 1866, and recorded.
Grigsby & Robinson having failed, made an assignment of their property to Goodloe, and the latter, as assignee, instituted this action in the Fayette Circuit Court for a settlement of his accounts, and asking the chancellor to determine the rights of those of the creditors who were asserting liens upon the property.
Several actions had been instituted by parties asserting liens, and were consolidated with the action instituted by the assignee, and heard together.
The Northern Bank of Kentucky and the other creditors for whose debts Huston & Downey were liable as sureties, in conjunction with the latter, filed their answer and cross-petition in the case, asking the foreclosure of the mortgage to Huston & Downey, denying any notice of the existence of the liens asserted by the appellants at the time it was executed, and insisting that the mortgage has priority.
It is maintained by appellants-- first, that their liens as mechanics and material-men began with their work, and continued until the work was completed, not only as against their employers, but as against innocent purchasers; second, that Huston & Downey had notice of their liens.
In the cases of Nazareth Literary and Benevolent Institution against Lowe (1 B. Mon.) and the Trustees of Caldwell Institute against Young (2 Duvall) the construction by this court of the mechanics' lien law then in existence and applicable to those cases gave to the mechanic, from the inception of the work to its consummation, a lien for his labor, etc., and no intervening charge upon the estate could defeat the lien, provided the mechanic asserted his lien within the time prescribed by the acts controlling those cases.
The court, in delivering the opinion in the last of the cases referred to, said: " Any other construction of the beneficent statute enacted for the security of building mechanics might frustrate its objects and make it a mockery."
At the time those cases were decided the mechanic had a lien on all the interest his employer had in the premises, or buildings upon which the work was executed, or for the construction of which the materials were furnished. There was no saving in those acts in favor of purchasers without notice, or any provision by which the mechanic's lien would be defeated, in the event he complied with the provisions of the law, in order to preserve his lien.
The legislature, subsequent to the rendition of the opinions referred to, enacted a mechanics' lien law applicable to the whole state, by which a lien is given the mechanic, but at the same time the rights of innocent purchasers are protected (Myers's Supplement, page 305, section 12.)
This general law was in many respects similar to the law embodied in the General Statutes, the only essential difference being that under the present law the claim of the mechanic must be registered with the county clerk within sixty days after he ceases to labor or furnishes the material, and proceedings instituted to enforce the lien within six months from the day of filing the account in the clerk's office. (Section 8, General Statutes, page 622.) Under the provisions of the act of 1858 the limitation was twelve months.
By the 1st section of the law now in force the mechanic has a lien not only on the building or improvement, but " on the land upon which such improvements may have been made, or on any interest such owner has in the same, to secure the amount thereof, with the costs."
By the 14th section " the liens declared in this chapter shall not be effectual or valid against a bona fide purchaser for a valuable consideration without notice, actual or constructive; but if such purchaser receives notice of the lien before the payment of the whole of the purchase-money, the lien shall operate on the purchase-money remaining unpaid."
The pendency of a suit to enforce the lien, or the filing of the account or statement in the clerk's office of the county court, as required by the 6th section of this chapter, shall be deemed constructive notice. Like provisions were contained in the act of 1858.
It is manifest that the object of the legislature in embodying these sections in the act of 1858, as well as in the present law, was to remedy what was supposed to be a defect in the original mechanics' lien laws, all of them being local in their application, by protecting innocent purchasers, in making the liens of mechanics subordinate to their rights when acquiring the property without notice, actual or constructive, of the lien.
There was no constructive notice in this case to the mortgagees Huston & Downey, as there was no suit pending to enforce the liens, nor had any evidences of the demands of appellants been filed in the county clerk's office, as provided by the 6th section of the act. No such claims could have been filed by some of the mechanics, as their part of the work had not been completed. The 14th section, however, was intended to protect the innocent purchaser, whether the work was completed or not. If incomplete, no constructive notice could well be given; and in the absence of actual notice that...
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