Patton v. Matter

• Decision Date: 14 December 1898
• Docket Number: 2,673
• Parties: PATTON ET AL. v. MATTER, TRUSTEE, ET AL
• Court: Indiana Appellate Court

52 N.E. 173

21 Ind.App. 277

PATTON ET AL. v. MATTER, TRUSTEE, ET AL

No. 2,673

Court of Appeals of Indiana

December 14, 1898

From the Grant Superior Court.

Reversed.

John A Kersey, for appellants.

H. J Paulus, Elliott & Elliott, Carroll & Dean, Henry & Elliott, Steele & Ratliff, Strange & Huffman and St. John & Charles, for appellee.

OPINION

HENLEY, J.

On the 10th day of May, 1897, William White, a resident of Grant county, Indiana, duly executed and acknowledged a deed of assignment in accordance and compliance with the laws of this State providing for voluntary assignments for the benefit of creditors. In the deed of assignment one Phillip Matter was named as trustee. Among the property conveyed to said trustee by the deed of assignment was the following: Forty-four feet off of the south side of lot 8, in block 16, in the original plat of the town (now city) of Marion, in Grant county Indiana. Situated upon the above described tract was a three story brick building, used in part as an opera house. On the 5th day of May, 1897, the said William White executed to his wife, one Hattie White, a mortgage upon said real estate, to secure an alleged indebtedness to her of about $ 15,000 which mortgage was duly recorded on the 5th day of June, 1897, in the recorder's office of Grant county, in mortgage record No. 34, at page 463. On the 22nd day of May, 1897, appellants Phillip Patton and John M. Thornburgh, who were partners doing business under the firm name and style of Patton & Thornburgh, filed in the office of the recorder of said county a written notice of their intention to hold a mechanic's and material man's lien on said real estate and the buildings thereon for moneys due them on account of work, labor, and material, done, performed, and furnished by them in repairing the building on said real estate, which notice was recorded as is provided by law; the amount claimed being $ 1,426.56. On the same day the appellants Henry Byrely and Shively Byrely, who were doing business as partners under the name and style of Byrely Bros., filed in the office of the recorder of said county their written notice of their intention to hold a mechanic's and material man's lien on said property for work, labor, and material furnished by them in repairing and improving the building situated upon said real estate. The amount claimed by Byrely Bros. is $ 586.22. The record shows the proper recording of these notices. On the 10th day of May, 1897, the appellants Leroy M. Whisler and Ralph P. Whisler, who are partners under the name and style of Whisler & Whisler, filed in the recorder's office of said county a mechanic's and material man's lien upon said property for work and labor and material furnished by them in and about the said building in repairing and improving the same. The amount claimed by them is $ 739.76. This notice was duly recorded according to law. This action was brought by said Phillip Matter, trustee, etc., against the said Hattie White and all the above described lien holder's averring the facts as above stated, and alleging further that the mortgage held by said Hattie White was fraudulent, and given to secure a pretended indebtedness, and was without any consideration whatever; that neither of the other defendants named in the complaint had done or performed any labor or furnished any material for repairing or improving said real estate, or the building thereon, within the sixty days next preceding the filing of their said notices of their intention to hold liens on said property; "that said pretended liens of each and all said defendants are clouds upon the title of said property. " The prayer of the complaint is that the title to the property be quieted against said liens, and that, in case any part of them are found to be valid, that the court determine the amounts, etc. Appellants Patton & Thornburgh, Whisler & Whisler and Byrely & Byrely appeared to the action, and separately answered by general denial, and by cross-complaint, in which each firm demanded the foreclosure of their alleged mechanic's and material man's liens. Answers in general denial were filed by each of the cross-defendants to the different cross-complaints. The plaintiff dismissed his action as to said Hattie White and also dismissed his complaint, and the cause was tried by the court upon the issues presented by the denial of the material allegations of the cross-complaints of appellants Patton & Thornburgh, Whisler & Whisler and Byrely & Byrely. The court having announced its finding, the cross-complainants severally moved for a new trial, assigning as reasons therefor (1) that the finding of the court is contrary to the evidence; (2) the finding of the court is contrary to law; (3) the finding of the court is not sustained by sufficient evidence; (4) for error in the assessment of the amount of recovery on the mechanic's lien, in that the same is too small. The motions for a new trial were each overruled, and the court rendered the following judgment: "And the court now renders judgment on all said findings as follows to wit: It is considered by the court that the said cross-complainants Phillip B. Patton and John M. Thornburgh recover of and from said defendant William White the sum of $ 1,567.75, with relief, except as to $ 13.75 thereof, and costs, and that as to the $ 13.75 their mechanic's lien sued on in their said cross-complaint be, and the same is hereby, foreclosed against all said defendants, and the land described in their said cross-complaint, to wit: Said 44 feet off of south side of lot 8, in block 16, in the original plat of the town (now city) of Marion, in said Grant county, Indiana, is ordered to be sold by the sheriff of said county, without relief, upon a certified copy of this decree as upon executions at law, to make said sum of $ 13.75 and costs herein, taxed at $ and cts. It is further considered by the court that said cross-complainants Henry Byrely and Shively Byrely recover of and from said defendant William White the sum of $ 596.84, with relief except as to $ 11.25 thereof, and costs, and that as to said $ 11.25 their mechanic's lien sued on in their cross-complaint be, and the same is hereby, foreclosed against all said defendants, and the land described in their said cross-complaint to wit: Said 44 feet off of the south side of lot No. 8 in block 16, in the original plat of the town (now city) of Marion, in said Grant county, Indiana, is ordered to be sold by the sheriff of said county, without relief, upon a certified copy of this decree as upon executions at law to make said sum of $ 11.25 and costs herein taxed at $ and cts. It is further considered by the court that the cross-complainants Leroy M. Whisler and Ralph P. Whisler recover of and from said defendant William White the sum of $ 469.76, with relief, except as to $ 62.50 thereof, and costs, and that as to said $ 62.50 their mechanic's lien sued on in their said cross-complaint be, and the same is...