Union Nat. Sav. & Loan Ass'n v. Helberg

• Decision Date: 22 November 1898
• Citation: 152 Ind. 139,51 N.E. 916
• Court: Indiana Supreme Court
• Parties: UNION NAT. SAVINGS & LOAN ASS'N v. HELBERG et al.

152 Ind. 139

51 N.E. 916

UNION NAT. SAVINGS & LOAN ASS'N

v.HELBERG et al.¹

Supreme Court of Indiana.

Nov. 22, 1898.

Appeal from superior court, Lake county; J. E. Cass, Judge.

Action by the Union National Savings & Loan Association against George H. Helberg and one Mosier. From a judgment for Mosier, plaintiff appeals. Reversed.

Olds & Griffin, for appellant. Peter Crumpacker, for appellees.

HACKNEY, C. J.

The appellant sued to foreclose a mortgage executed by the appellee Helberg. The appellee Mosier, by cross complaint, sought to enforce a mechanic's lien as senior to the mortgage. The essential facts were that Helberg owned a lot in the city of Hammond, and in December, 1892, contracted with Mosier for the erection of a dwelling house. The dwelling house was under construction when, in March, 1893, the appellant, with knowledge of said contract and the work upon said house, made a loan of $1,300 to Helberg, which loan was secured by a mortgage of said lot. On the 30th day of September, 1893, within the statutory time, Mosier gave the proper notice of a mechanic's lien. On the 8th day of September, 1894, Mosier sued to foreclose said lien, not making the appellant a party, and in February, 1895, purchased said property under a decree of foreclosure. The lower court held the lien of Mosier senior to that of the appellant, and that holding presents the question for decision by this court.

It is not questioned that, in point of time, the mechanic's lien was, by relation back to the time when the work began, senior to the mortgage; but it is insisted that by the failure to bring suit to foreclose such lien, as against the appellant, within one year from the giving of such notice, the lien was waived as to the appellant. The statute, giving the remedy for the foreclosure of mechanics' liens, provides that “any person having such lien may enforce the same by filing his complaint in the circuit or superior court of the county where the labor was performed or the materials, machinery, articles, things, or service furnished or rendered at any time within one year from the time when said notice has been received for record by the recorder of the county, * * * and if said lien shall not be enforced within the time prescribed by this section, the same shall be null and void. * * *” Horner's Rev. St. 1897, § 5298 (Burns' Rev. St. 1894, § 7259). It will thus be seen that the remedy is limited to one year, and, if the complaint is not filed during that period, the lien is void. We have seen, also, that the remedy, as against Helberg, the owner of the property, was enforced within the year. Does the statute require that the remedy shall be enforced also against existing junior lienholders, within the year, to save the validity of the senior lien? The requirement of the statute is general, and contains no exception applicable to this case. Its object was to prevent the ex parte incumbrance from beclouding titles, and embarrassing dealings with reference to the property, for a longer perior than one year. This object cannot be said to concern the property owner alone, for the junior incumbrancer is interested in having the lien determined while the extent of labor or materials may be more easily ascertained, and while values, as to the lien, may not become obscure, and, as to the property, may not become impaired. A foreclosure, as against a junior lienor alone, could hardly be said to satisfy the statutory requirement if objection were made by the property owner. If, upon such...