Squier v. Parks

• Decision Date: 17 June 1881
• Parties: SQUIER ET AL v. PARKS ET AL
• Court: Iowa Supreme Court

9 N.W. 324

56 Iowa 407

SQUIER ET AL v. PARKS ET AL

Supreme Court of Iowa, Des Moines

June 17, 1881

Appeal from Taylor District 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 7th, 1875. The defendants, Goodsill Brothers, Anderson & Company, on the 18th 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 17th, 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 building 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 shows on its face that it is barred by the statute of limitations, in this, that the date of the last item in said account was November 17th, 1876, and that was over three years before the action was commenced.

"2. That it is true that the said lien was filed within two years last past, viz: on October 1st, 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 Goodsill Brothers, Anderson & Co., as prayed in their cross-bill. The plaintiffs appeal.

REVERSED.

Crum & Haddock, for the appellants.

Lyman Evans, for Goodsill Bros., Anderson & Co.

OPINION

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 ninety days, and by a sub-contractor within thirty 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 right accrued after the thirty or ninety days, and before any claim for the lien was filed. The mortgage to plaintiff was not executed after ninety 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 the statement in the clerk's office. The question involved in the case is the following: "Under section 2529 of the Code, may an action to enforce a mechanic's lien be brought within two years from the time of filing the statement in the clerk's office, although such statement be not filed until after the expiration...