Leeds Lumber Co. v. Haworth

Kinne, J. The sole question presented by this appeal is whether an action to foreclose a mechanic’s lien, not barred by the statute of 'limitations against the principal debtor, by reason of her removal from the state before the statute had fully run, and her constant non-residence thereafter, is barred as to other persons holding liens upon the premises, who have been residents of the state during the entire period. Our statute provides that the following actions may be “brought within the times herein limited, .respectively, after their causes accrue, and not afterwards, except when otherwise specially declared; * * * Actions to enforce a mechanic’s lien within two years from the time of filing the statement in the clerk’s office.” Code, section 2529, subd. 2. It is also provided that “the time during which a defendant is a non-resident of the state shall not be included in computing any of the periods of limitations above described.” Code, section 2533. Appellants were not parties to the contracts between plaintiff and the Haworths. They are in no way privy to it. The statute was not set in operation by any act 465 of theirs. The debt ivas Eva M. Haworth’s, and such debt, under the statute, gave the right to the lien which plaintiff seeks to assert. A mechanic’s lien, in a sense at least, is an incident of a debt, the result of a contract. We have held that when, by reason of the non-residence of the defendant, an action upon a promissory note is not barred, an action to foreclose a mortgage securing the note is not barred as against subsequent purchasers and junior lienholders, whc have been residents of the state during the entire statutory period; that, so long as the mortgage is enforceable as against the original debtor, the statute is no bar to its enforcement against the subsequent lien-holders. Clinton County v. Cox, 37 Iowa, 570; Shearer v. Mills, 35 Iowa, 500; Robertson v. Stuhlmiller, 93 Iowa, 326 (61 N. W. Rep. 986). The doctrine announced in these and other cases is applicable to the case at bar, and, following it, the district court properly overruled the demurrer. — Affirmed.