DeGive v. Meador & Tumlin

Trippe, Judge. 1. There can be no legal necessity, in order to assert any right of plaintiff in. error, that he should be made a party to the suit he proposed to defend. He has purchased the property at a sale under a legal process, and by section 1961, Revised Code, takes it discharged of the mechanics’ lien, and if any lien may exist it can only attach to the proceeds of the sale upon notice of the mechanic to the officer who sold the property, to hold the money to be disposed of by the superior court. -It may be that the defendants in error desire ageneral judgment against their debtor as well as one for their lien, which we have held at this term they can obtain : Parish vs. Murphy, decided at this term. They should not be postponed in obtaining this by a third party on the mere ground that he has become the'purchaser of the property on which the lien is claimed. He can defend himself if an attack be made upon him or his property. 2. It does not clearly appear what precisely is the object of DeGive in asking to be allowed to defend against the suit of Meador & Tumlin. If it be because he wishes to protect his title, we have seen there is no danger to that. If it be that notice has been given by Meador & Tumlin to the officer to hold the money arising from the sale at which DeGive pur [164] chased the property, and that there will be a contest by conflicting liens over the fund, it does not so appear from the record. So far as the record discloses, the proceeds may have been already distributed. The fact that DeGive holds the mortgage does not affect the case, for if the money is already distributed there is nothing over which the contest can arise, neither title or money. And if the proceeds of the sale are yet tó be distributed by the court, and the mechanics’ lien and the mortgage lien come in conflict, the court doubtless will open the door wide enough to let the rights of all the parties be heard, contested and adjudicated. DeGive would have all the rights on that issue that he could have in the one he proposes now to make. • 3. The sale of the property discharged it from the mechanics’ lien if it existed, under the section of the Code quoted, and all questions touching the priority or validity of conflicting liens can, as between contesting creditors, be determined on the hearing of a rule for the distribution of the money arising from the sale. Judgment affirmed.