Stoermer v. People's Sav. Bank of Evansville, Ind.

• Decision Date: 12 January 1899
• Citation: 152 Ind. 104,52 N.E. 606
• Parties: STOERMER v. PEOPLE'S SAV. BANK OF EVANSVILLE, IND.
• Court: Indiana Supreme Court

152 Ind. 104

52 N.E. 606

STOERMER

v.PEOPLE'S SAV. BANK OF EVANSVILLE, IND.

Supreme Court of Indiana.

Jan. 12, 1899.

Appeal from superior court, Vanderburg county; John H. Foster, Judge.

Action by the People's Savings Bank of Evansville, Ind., against Herman Stoermer. There was a judgment for plaintiff, and defendant appeals. Affirmed.

William Reister, for appellant. James T. Walker, for appellee.

MONKS, C. J.

In 1890 a mortgage was executed to appellee on certain real estate in Evansville, Ind., to secure a loan made to the mortgagor, which mortgage was duly recorded. Afterwards, in 1894, appellant filed in the office of the recorder of Vanderburg county, Ind., a notice of intention to hold a mechanic's lien on the same real estate for work and labor done and performed and for material furnished in the erection of a building on said real estate. Said notice was filed within 60 days after the last item of labor or material was furnished, and said mechanic's lien was in all respects valid. An action was commenced in the court below within one year from the time said notice was filed, and on March 26, 1896, said mechanic's lien was foreclosed, and said real estate ordered sold to pay the same. Appellee was not made a party to said action. On June 24, 1896, appellee commenced this action against the mortgagor to foreclose said mortgage executed in 1890, making appellant and other junior lienholders defendants. Appellant, for answer to appellee's complaint to foreclose said mortgage, set up said mechanic's lien and the decree foreclosing the same, alleging that said mechanic's lien was for labor and material furnished in the erection of a building upon said real estate after the execution of said mortgage thereon, and that said mechanic's lien on said building so erected was superior to the lien of appellee's said mortgage thereon, under the provisions of Burns' Rev. St. 1894, § 7256 (Acts 1889, p. 257). The court below held that the lien of said mortgage was superior to the mechanic's lien on said building, and rendered judgment accordingly.

It is provided in section 7256, supra, being section 2 of an act approved March 9, 1889 (Acts 1889, p. 257), that when land is incumbered by a mortgage, and a building is erected thereon, the mechanic's lien on said building is superior to the lien of the mortgage thereon, and the building may be sold to satisfy the mechanic's lien, and removed within 90 days by the purchaser. It is insisted by appellant that under said section the mechanic's lien on the building erected on the real estate described in the mortgage and notice of mechanic's lien was superior to the lien of said mortgage, and that he was entitled to a decree for the sale of said building to pay said mechanic's lien, and that the...