Squier v. Parks

• Decision Date: 17 June 1881
• Citation: 56 Iowa 407,9 N.W. 324
• Parties: SQUIER AND OTHERS v. PARKS AND OTHERS
• Court: Iowa Supreme Court

56 Iowa 407

9 N.W. 324

SQUIER AND OTHERS

v.PARKS AND OTHERS

Supreme Court of Iowa.

Filed June 17, 1881.

Appeal from Taylor circuit court.

The plaintiffs bring this action to recover the amount of five promissory notes executed by the defendant William C. Parks to the plaintiffs, and to foreclose a mortgage executed to secure said notes, dated May 7, 1875. The defendants Goodsell Brothers, Anderson & Co., on the eighteenth day of February, 1880, filed an answer and cross-bill for the foreclosure of a mechanic's lien, filed on the first day of October, 1879, for lumber furnished to make improvements on the mortgaged premises, the last item of account being furnished November 17, 1876. The defendants ask that the mechanic's lien be foreclosed and be declared superior to the lien of the plaintiffs' mortgage as to the buildings and improvements. The plaintiffs demurred to the answer and cross-bill, as follows: “(1) That the cause of action, as sought to be brought by the defendants, showed on its face that it is barred by the statute of limitations in this, that the date of the last item of said account was November 17, 1876, and that was over three years before this action was commenced. (2) That it is true that the said lien was filed within two years last past, viz., on October 1, 1879, but the statute of limitations cannot be prolonged by the act of the plaintiff. (3) That having had two years to bring their action and foreclose their lien, and failing to do so, the action is fully barred.” This demurrer was overruled. The plaintiffs refusing to further plead, a decree was entered against them in favor of Goodsell Brothers, Anderson & Co., as prayed in their cross-bill. The plaintiffs appeal.Crum & Haddock, for appellants.

Lyman Evans, for Goodsell Brothers, & Anderson & Co.

DAY, J.

Section 2133 of the Code provides that a verified statement of the account and description of the property to be charged with the lien shall be filed with the clerk of the district court, by a principal contractor, within 90 days, and by a subcontractor within 30 days, from the date of furnishing the last of the material or performing the last of the labor. It is further provided that a failure to file the statement within the time prescribed shall not defeat the lien except as against purchasers or encumbrancers in good faith, whose rights accrued after the 30 or 90 days, and before any claim for the lien was filed. The mortgage to plaintiff was not executed after 90 days from the furnishing of the last item of account, and before the statement for a lien was filed. The plaintiffs, therefore, are not entitled to protection as encumbrancers under the provisions of section 2133 above referred to. The cross-bill to foreclose the lien was filed about four and one-half months after the statement for the lien was filed, but the statement for the lien was not filed until nearly three years after the last item of account was furnished.

Section 2529 of the Code provides that actions to enforce a mechanic's lien must be brought within two years from the time of filing...