Millikin v. Armstrong

Worden, J. Complaint by .George and Ilenry H. Armstrong, against O’Neal Bayley, James S. Irwin and Charles [457] E. Douglas, partners, doing business under the name and style of The Madison Starch Go., to enforce a mechanic’s lien upon certain premises described and called the Madison Starch Factory. In addition to the above named de-^^17717 . _ ♦ * _ . _ fenclants, Robert B. M^U^kln and Benjamin J. Adams, the appellants herein, and John S. and Reuben E. Weal, partners, &c., Alexander White and Robert Pattie, partners, &c., James Davidson and William 8. Driggs, partners, &c., Cochran and Sons, and Joseph Farnsworth were made defendants. It appears that the plaintiffs, the Armstrongs, acquired their lien on the premises on August 11,1857, by then filing their notice in the recorder’s office. On the next day, August 12, 1857, the said Charles E. Douglas, in whom the title to the premises had theretofore been, conveyed the same to said Millildn. From the date of the deed to Millildn, for the period of one year, the said JBayley <& Irwin held the premises'as tenants of Millikin’, at the expiration of which time they surrendered the same up to him. Millildn executed a mortgage on the premises, bearing date October 20, 1857, to the said Adams, to secure the payment of $40,000, but it was not acknowledged until Wovember 10, following, and was not recorded until the 29th of the same month. Adams appeared, and by way of cross complaint asked a foreclosure of his mortgage. The other defendants, the Weals, White & Pattie, Davidson <& Driggs, Farnsworth, and Cochran & Sons, each set up and sought the benefit of liens by them acquired upon the same premises. We understand from the brief of counsel that the claim of Cochran <& Sons is not objected to, therefore the case as to them will be no further noticed. The Court found in favor of the parties so setting up their liens, and that they all had priority over the mortgage of Adams, and ordered certain portions of the premises and fixtures to be sold, as personal property, to satisfy said liens, &c. The Court also found in favor of Adams the sum of $45,800, on his mortgage, and ordered the premises to be sold, &c. The notice of the Weals, White <& Pattie, Davidson & Driggs, and Farnsworth, were not filed in the recorder’s office [458] until after the mortgage of Adams was executed and recorded, and had not priority over the mortgage. The mortgage being recorded within the time required by law, would probably take effect as a lien from the time of its delivery, but this point need not be decided, as it was recorded before the notices of lien were filed. The lien of a mechanic, &c., only takes effect from the time of filing his notice in the recorder’s office. Green v. Green, 16 Ind. 253; Walters v. Waldo, at the present term. C. E. Walker, for the appellants, II. W. Harrington, for the appellees. The mortgage to Adams conveyed to him the entire premises, including the fixtures, &c., ordered to be sold as I>ersonal property to satisfy some of the liens. Sparks v. The State Bank, 7 Blackf. 469. The lien of the Armstrongs was perfected before there was any transfer of the property. The only objection made to their claim is, that they took a note signed by Bayley, Irwin and Douglas, in the name of the Madison Starch Co., payable to Bayley <& Co., and by the latter indorsed to them. ■ Bayley & Co., were the same Bayley and Irwin, who composed two of the three members of the starch company. It is claimed that by this arrangement the Armstrongs procured additional security for the payment of their debt, and thereby waived their lien. Whether a mechanic’s lien, like a vendor’s, would be waived by taking collateral security, we need not decide, but the point is regarded as doubtful. The circumstances here shown would not, in our opinion, be a waiver even of a vendor’s lien. By the arrangement made, the Armstrongs had no one bound as indorsers of the note, except those that were bound as makers, who owed the claim. No additional security was acquired, and the lien was not thereby waived. Per Curiam. — That portion of the judgment which orders that the claims of the Neals, White & Pattie, Davidson c& Driggs, and Farnsworth, shall have priority over the mortgage of Adams, and which orders any portion of the property to be sold to satisfy those claims, is reversed, at the costs of those parties. Otherwise the judgment is affirmed.