White v. Stanton

• Decision Date: 21 September 1887
• Docket Number: 12,924
• Citation: 13 N.E. 48,111 Ind. 540
• Parties: White et al. v. Stanton et al
• Court: Indiana Supreme Court

13 N.E. 48

111 Ind. 540

White et al. v. Stanton et al

No. 12,924

Supreme Court of Indiana

September 21, 1887

From the Porter Circuit Court.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

J. H Gillett, for appellants.

E. D Crumpacker and P. Crumpacker, for appellees.

OPINION

Niblack, J.

Complaint by Levi F. White and Theron H. Bell, partners doing business under the name and style of White & Bell, against Aaron Stanton, Caroline Stanton, Sarah Malone and John Hansford, to enforce a lien against real estate.

The complaint charged that, prior to the 4th day of June, 1885, the defendant Aaron Stanton purchased a bill of lumber of the plaintiffs at and for the price of sixteen dollars and eighty-one cents; that said lumber was purchased to be, and was in fact, used in the construction of a building situate on the following real estate in Porter county, in this State, to wit: The east half of the northwest quarter of section sixteen (16), in township thirty-five (35) north, and in range five (5) west, and otherwise described as lots Nos. one (1), four (4), five (5) and ten (10), in said section sixteen; that at the time of said sale, and the use of said lumber in said building, the said Aaron Stanton was the owner in fee-simple of said real estate; that afterwards, and within sixty days after the purchase of said lumber, the plaintiffs executed, and caused to be recorded in the mechanic's lien record of said county, a notice of their intention to hold a lien on the real estate above described, a copy of which notice was filed with and made a part of the complaint; that the parties to said complaint were residents of, and the real estate therein described was and still is situate in, said county of Porter; that by mistake the county in which said real estate was situate was not stated in said notice, but that said real estate was well known to the citizens of said county of Porter by the description contained in said notice; that the amount for which said lumber was sold was still due and unpaid; that the defendant Caroline Stanton was the wife of her co-defendant Aaron Stanton, and claimed to have become the owner of said real estate by a conveyance subsequent to the accruing of the lien of the plaintiffs; that the defendant Hansford had purchased a part of said real estate from said Caroline and still owned the same; that the defendant Sarah Malone claimed some interest in said real estate junior to the lien of the plaintiffs. Wherefore a judgment against said defendant Aaron Stanton and the foreclosure of said alleged lien were demanded.

The copy of the notice filed with the complaint was as follows:

"To Aaron Stanton, Caroline Stanton, and others concerned:

"You are hereby notified that we intend to hold a mechanic's lien on lots one (1), four (4), five (5) and ten (10), in block two (2), in section sixteen (16), township thirty-five (35) north, range five (5) west, containing eighty acres, more or less, as well as the dwelling-house erected thereon by -----, for the sum of sixteen and 81/100 ($ 16.81) dollars, and materials furnished by us in the erection and construction of said house, which materials were done and furnished by us at your special instance and request, and within the last sixty days.

White & Bell.

"June 4th, 1885."

The defendants Caroline Stanton and Sarah Malone demurred separately and severally to the complaint, and, their demurrers being sustained, they had final judgment upon demurrer.

This appeal, therefore, presents only the question of the sufficiency of the complaint as against the said Caroline Stanton and Sarah Malone.

The objection urged to the complaint is based upon the alleged insufficiency of the notice to create a lien upon the land, or any part of it, described in that pleading, and particularly as against subsequent purchasers or junior encumbrancers.

It is claimed in support of this objection that the notice is fatally defective on account of its failure:

First. To...