Raymond v. Ewing

Caton, C. J. Ewing & Co. were not parties to the lien suit, and were not bound by that decree. They may contest that decree in this mode. We are of opinion that the Circuit Court should not have stopped short upon granting the injunction to restrain the sale decreed in the mechanics’ lien suit, but it should have gone on and settled the rights of the parties. The deed of trust constituted a first lien upon the premises, and improvements thereon at the time' the trust deed was recorded; but the statute gives the mechanics and material men liens, paramount to the trust deed, upon the improvements made by them upon the premises, and the court should have ascertained, by reference or otherwise, the value of these improvements as compared with the whole value of the premises, and given to the petitioners in the lien suit their due proportion of the proceeds of the premises, according to the provisions of the statute. The petition in that suit is not obnoxious to the objections suggested. It shows when the money was payable, and when the contracts were made, from which we can see that the petition was filed in time. The decree must be reversed and the suit remanded, with directions to the Circuit Court to proceed as here suggested. Decree reversed.