Northwestern Loan & Inv. Ass'n v. McPherson
| Decision Date | 07 June 1899 |
| Citation | 54 N.E. 130,23 Ind.App. 250 |
| Court | Indiana Appellate Court |
| Parties | NORTHWESTERN LOAN & INVESTMENT ASS'N v. McPHERSON et al. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fulton county; A. C. Capron, Judge.
Suit by McPherson & Ralston and others against the Northwestern Loan & Investment Association and others. There was a decree for plaintiffs, and defendant association appeals. Affirmed.
De Witt C. Justice and Holman & Stephenson, for appellant. Enoch Myers, for appellees.
This suit was instituted by appellees McPherson & Ralston (dealers in paints and oils), John W. Long (lumber dealer), Rufus Blair and Philip Anderson (laborers), upon a complaint in one paragraph against appellees Lewis C. Mills and Rachel A. Mills, his wife, to foreclose separate mechanics' liens. The appellant was made defendant, the complaint alleging that it was an inferior mortgagee. Appellant filed its cross complaint against all the appellees for the foreclosure of its mortgage as a superior lien. The court made a special finding of facts, and stated conclusions of law thereon, in which it held appellant's lien to be junior to that of appellees. To the conclusions of law the appellant at the proper time excepted. As stated by appellant's counsel, the assignment of errors brings in question (1) the right of appellees to maintain a joint action; (2) the effect of a failure to record the notice of intention to hold a lien in the miscellaneous record of the recorder's office (said record having been made in the mechanic's lien record); (3) the variance between the property described in the notices and that described in the special finding; (4) the effect of a single notice of lien against two lots for work and material to both. These questions will be considered in the foregoing order.
The action, as stated, is by several material men and mechanics. They united in the complaint in a single paragraph. The claim of each is separately stated. In 13 Enc. Pl. & Prac. pp. 950, 951, it is stated that, “in the absence of statutory authority, lien claimants cannot unite in a suit to foreclose unless jointly interested and jointly entitled to a lien on the property,”-citing Bush v. Connelly, 33 Ill. 447; Harsh v. Morgan, 1 Kan. 293. It is further stated at the same page: “But, when authorized by statute, claimants whose claims are several, and who are with out any community of interest in the claim themselves, may unite in an equitable action to establish and enforce their liens, or any one of them may file a bill on his own claim, making the others defendants,”-citing Barber v. Reynolds, 33 Cal. 497;Longest v. Breden, 9 Dana, 141;Lumber Co. v. Warner, 60 Wis. 183, 18 N. W. 747. The statute in this state, as to parties in actions for foreclosure of mechanics' liens, being section 5299, Horner's Rev. St. 1897, is as follows: The complaint and the special findings show that neither appellees McPherson & Ralston, nor either of the other plaintiffs, had an interest in the claim of any other; that each performed labor and furnished material, and that each was entitled to separate relief. While claimants having several interests may be made defendants, we are of the opinion that the statute does not authorize a joinder of plaintiffs whose claims and interests are several. Martin v. Davis, 82 Ind. 38;McGrew v. McCarty, 78 Ind. 496. Had separate actions been brought by appellees, the court could have properly consolidated them; and as the claims were stated severally, and the finding and judgment several as to each plaintiff, we cannot see that appellant was deprived of any right or was in any way prejudiced by the action of the court in overruling the demurrer to the complaint. See section 348, Rev. St. 1894 (section 345, Horner's Rev. St. 1897).
Under the second question discussed, appellant argues that as the special findings show that the notices of intention to hold a lien were never recorded in the miscellaneous record, as required by the statute, the lien sought to be acquired could not operate against appellant's mortgage, which was executed and recorded prior to the filing of these notices by appellees. The claim is based upon the proposition that the claims sought to be enforced are purely statutory, and that claimants must bring themselves within the terms of the statute. Section 5295, Horner's Rev. St. 1897, requires any person wishing to acquire a lien to file a notice of his intention to do so within 60 days after performing the work or furnishing labor to hold such lien. Section 5296 makes it the duty of the recorder to record such notice in the miscellaneous record book. This section provides that all liens so created shall relate to the time when the mechanic or other person began to perform the labor or to furnish the materials, and shall have priority over all liens suffered or created thereafter, except the liens of other mechanics and material men, as to which there shall be no priority. Under the decisions of our supreme court, appellees acquired a lien upon the property by filing notice of their intention with the recorder of Fulton county. The recorder failed to record it in the proper record, but this did not defeat the lien. Wilson v. Logue, 131 Ind. 191, 30 N. E. 1079;Adams v. Shaffer, 132 Ind. 331, 31 N. E. 1108;Adams v. Buhler, 131 Ind. 66, 30 N. E. 883;Wilson v. Hopkins, 51 Ind. 231;Leeper v. Myers, 10 Ind. App. 314, 37 N. E. 1070. The question here is one between two lienholders. The lien of one is recorded, the other not; for “the recording of an instrument is effective only when made by the proper officer, in the mode prescribed by law” (Adams v. Buhler, supra; Gilchrist v. Gough, 63 Ind. 576;State v. Davis, 96 Ind. 539;Smith v. Lowry, 113 Ind. 37, 15 N. E. 17); and, did the right to a lien depend upon the record of these instruments, we would have to hold that appellees had no claim as against appellant. It is conceded by appellant's learned counsel that, under the decisions of the supreme court of this state, the filing of the notice secures the lien as between the owner and the lien claimant, but it is denied that the lien can be thus obtained as against an innocent third party for value. This precise question, so far as we are advised, has not been passed upon in this state. The wording of the statutes of the various states upon the subject of mechanics' liens is dissimilar, and reported cases in which they are construed do not greatly aid us. It seems to us, however, as reasonable, that, when a mechanic or laborer does all that the statute requires him to do, he is entitled to whatever right the statute gives as against any one. He is required to file his notice for record with the recorder of the county; there his duty ends. Our supreme court has held that from that time the lien takes effect. We cite, in this connection, Tousley v. Tousley, 5 Ohio St. 78; Insurance Co. v. Dake, 87 N. Y. 257; Bedford v. Tupper, 30 Hun, 174; Merrick v. Wallace, 19 Ill. 486; In re Wood's Appeal, 82 Pa. St. 116; In re Brooke's Appeal, 64 Pa. St. 127. The liens of appellees in whose favor liens were declared relate to the times when the work was commenced or the materials begun to be furnished. According to the findings, the notices were not filed until after the mortgage was recorded; but McPherson & Ralston's lien relates to April 13, 1896, and Long's lien to March 26, 1896,-both prior to the date of the execution of appellant's mortgage. Where one acquires a lien on property with knowledge of the purposes to which such property may be employed by the owner, and that under the statute it may be subjected to other acquired liens in favor of laborers and material men, the statute under...
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