Patton v. Matter

• Decision Date: 14 December 1898
• Parties: PATTON et al. v. MATTER et al.
• Court: Indiana Appellate Court

21 Ind.App. 277
52 N.E. 173

PATTON et al.
v.
MATTER et al.

Appellate Court of Indiana.

Dec. 14, 1898.

Appeal from superior court, Grant county; Hiram Brownlee, Judge.

Action by Phillip Matter, trustee, and others, against Hattie White and others, to quiet title against liens claimed on land that had been assigned to plaintiffs for creditors. From a judgment for plaintiffs, defendants Phillip Patton and others appeal. Reversed.

John A. Kersey, for appellants. Elliott & Elliott and H. J. Paulus, for appellees.

HENLEY, J.

On the 10th day of May, 1897, William White, a resident of Grant county, Ind., 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, Ind. 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 22d 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 lienholders, averring the facts as above stated, and alleging further that the mortgage held by said Hattie White was fraudulent, and given

[52 N.E. 174]

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 60 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...