The Jeffersonville Water Supply Company v. Riter
| Decision Date | 29 May 1894 |
| Docket Number | 16,761 |
| Citation | 37 N.E. 652,138 Ind. 170 |
| Parties | The Jeffersonville Water Supply Company v. Riter et al |
| Court | Indiana Supreme Court |
From the Floyd Circuit Court.
The judgment is reversed, with instructions to grant a new trial and with leave to file an amended complaint.
A Dowling, for appellant.
J. H Stotsenburg, E. B. Stotsenburg and S. S. Johnson, for appellees.
This was an action brought by the appellees to enforce a mechanic's lien, and for the collection of a balance of nearly four thousand dollars alleged to be due on a contract for the erection of a standpipe for a system of water works.
The complaint was in four paragraphs, to which separate demurrers were overruled, as were also separate motions to strike out the notice of lien and all allegations in connection therewith, in the second, third and fourth paragraphs of the complaint.
The appellant answered in general denial of each paragraph of the complaint, and also filed interrogatories which were answered by the appellees.
The venue was changed from Clark to Floyd county, and there was a trial before the Honorable George V. Howk, judge of that circuit, who took the cause under advisement, but who died before announcing his finding. The case was then, by consent, submitted, on the same evidence, to the honorable judge below, who returned his special finding, as requested by the appellant, with conclusions of law thereon, in favor of the appellees. Judgment was rendered in accordance with the conclusions of law.
It is alleged, in the first paragraph of the complaint, that on April 6, 1888, Samuel R. Bullock, who was a codefendant of the appellant in the court below, but who does not appear as a party to this appeal, owned a certain described lot in Port Fulton, Clark county, Indiana; that on said day the appellees and said Bullock entered into an agreement to the effect that appellees should furnish the materials for and erect a standpipe on said lot for a water works system for the city of Jeffersonville; that on April 10, 1888, the work of furnishing material for said standpipe commenced, and the same was completed on December 1, 1888; that the agreed price of the work was $ 8,072, and, on October 10, 1888, the sum of $ 4,000 was paid upon said amount, and the further sum of $ 86.03, as freight on material, was also paid, leaving due and unpaid $ 3,985.97; that all material furnished by appellees in the construction of said work was used in said standpipe upon said lot; that on the 4th day of December, 1888, and within less than sixty days after said material was furnished and said standpipe finished, the appellees filed in the recorder's office of the county a notice of their intention to hold a lien on said property for the amount of their said claim, setting forth also a description of the property; that the notice was duly recorded, and a copy is filed with the complaint; that on April 21, 1888, the said Bullock and his wife conveyed said real estate to the appellant, who is now the owner of and using and operating the same.
The mechanic's lien law, in force during the time the alleged work was done, was the act approved March 6, 1883 (Acts 1883, p. 140; Elliott's Supp., section 1688 and following; section 7255 and following, R. S. 1894).
It is insisted that under provisions of said act, the demurrer to the first paragraph of the complaint should have been sustained as to the appellant, "for the reason that it does not appear that any materials were furnished or any labor performed by the appellees before the conveyance of the lot by Bullock to appellant;" and many authorities are cited to show that "the alienation of the real estate before any labor is performed or materials are furnished, defeats the right of a mere contractor for labor and materials to subject the property in the hands of a purchaser to the statutory lien for labor done and materials furnished after such alienation of title."
The contention of appellant would undoubtedly be good under the authorities cited, if it were in fact true that the paragraph of complaint showed that the materials were furnished and the work done after the conveyance of the land. But it is expressly alleged that the conveyance from Bullock to appellant was made "by deed dated April 21, 1888." It is likewise alleged "that on the 10th day of April, 1888, the work of furnishing material, etc., for said standpipe commenced, and materials for the same were furnished."
As said in appellant's brief, "the language of the act of 1867, as to the priority of mechanics' liens, is substantially the same as that of the act of 1883. In Fleming v. Bumgarner, 29 Ind. 424, the court gave a construction to the act of 1867, and said: 'A fair construction of the law is, that the lien of the mechanic or material man relates to the time when the work commenced, or the materials began to be furnished, as to subsequent conveyances as well as to other liens.'
This construction of the law was approved in Kellenberger v. Boyer, 37 Ind. 188, and the court added, citing other authorities: 'A subsequent transfer of the property ought and does not affect the lien after work has actually been begun.'"
For a full discussion of this subject see Phillips Mech. Liens, Chap. XIX.
We are of opinion that the first paragraph of the complaint is not subject to the objection urged by the appellant under his demurrer. At most, the allegation relating to work and material would be subject to a motion to make more specific as to the nature of the work and the place of furnishing the material.
The second paragraph of the complaint is quite similar to the first. It is further alleged in this paragraph, that the appellees had no actual knowledge of the transfer of the lot from Bullock to appellant until the completion of the work. This allegation is lacking in clearness, and was also subject to a motion to make more specific. The reasonable inference, however, is that appellant failed to put its deed on record until the completion of the work. It is not easy to conceive any other legal reason why appellees should have no knowledge of the transfer of title. Appellant could not, by concealing its deed, defeat the lien of appellees, even if the material were not furnished nor the labor done until after the transfer of title. For this purpose there need not have been intentional fraud on the part of Bullock or appellant; but if, by the fault or mistake of appellant, appellees were kept in ignorance of the transfer of title until after the labor and material were furnished, appellant could not take advantage of its own wrong to defeat the rights of appellees.
By section 3350, R. S. 1894 (section 2931, R. S. 1881), a conveyance not "recorded in forty-five days from the execution thereof, shall be fraudulent and void as against any subsequent purchaser, lessee or mortgagee in good faith and for a valuable consideration."
By section 3345, R. S. 1894 (section 2926, R. S. 1881), no conveyance "shall be valid and effectual against any person other than the grantor, his...
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