40 Neb. 529 | Neb. | 1894
On the 27th day of December, 1887, the defendants Thompson and wife executed to James L. Lombard two mortgages upon the northwest quarter of section 22, town
“It is hereby stipulated and agreed by and between the plaintiff and the defendant W. W. Birge that the case shall be submitted to the court, as to the plaintiff and said Birge, upon the following facts, to-wit:
“On the 1st day of July, 1887, the defendant W. W. Birge made and entered into an oral contract with the defendant Roy Thompson to furnish him material for the erection of a dwelling house and barn on the northwest quarter of section 22, township 14, range 33 west of the sixth principal meridian.
“In pursuance to said contract said W. W. Birge
“It is agreed further that the plaintiff’s petition and the answer and cross-petition of the defendant the Anglo-American Land Mortgage & Agency Company (Limited) state the facts as to dates, amounts, and conditions of the bonds and mortgages sought to be foreclosed in this action, and their assignment to the plaintiff and the defendant and cross-petitioner, the Anglo-American Land Mortgage & Agency Company (Limited), and of the dates, books, and pages of the record of said mortgages and the land covered by them. Grimes & Wilcox,
“Attorneys for Defendant Birge.
“D. H. Ettien,
“Attorney for Plaintiff and the Defendant Anglo-American Land Mortgage & Agency Company (Limited).”
On the 11th day of August, 1891, a final decree was entered by the district court sustaining the contention of Birge and adjudging his claim, to wit, for $654.95, to be a first'lien upon the mortgaged premises, and from which the plaintiff and the Anglo-American Land Mortgage & Agency Company have appealed to this court.
The contention of appellants is that the commencement of the action by Birge against Thompson and wife in January, 1890, and the decree subsequently rendered therein did not continue in force the mechanic’s lien as against the mortgages. The preserving and enforcement of mechanics, liens in this state is regulated by sections 3 and 4 of chapter 54, Compiled Statutes, 1885, as follows:
“Sec. 4. Every person holding any lien under this chapter may proceed to obtain a judgment for the amount of his account thereon by civil action. And when any suit or suits shall be commenced on such accounts within the time of such lien, the lien shall continue until such suit be finally determined and satisfied.”
These provisions were before the court in Green v. Sanford, 34 Neb., 363, and the construction there given them- fully sustains the position of appellants, overruling Manly v. Downing, 15 Neb., 637. It is therein declared to be the plain meaning of the statute that the lien is preserved as against those persons only who are made parties to the suit prior to the expiration of the statutory period for enforcing it by action. In that case Dishong, to whom building material was furnished, had but an equitable title, the legal title being in Sanford, the party subsequently brought in; but we are unable to perceive any ground for a distinction on principle between that case and this. The rights of a mortgagee are regarded with no less favor than those of the purchaser of the fee. He is even held to be a purchaser within the meaning of the registration laws of most of the states. (Jones,. Mortgages, 458.) There are no considerations of equity in favor of the continuance of the lien as
2. Did the subsequent voluntary appearance of James L. Lombard relate back to the commencement of the action so that it will be said to have been commenced as to him at the time of the filing of the petition in January, 1890? Clearly not. It is provided by section 19 of the Civil Code that “an action shall be deemed commenced, * ■ * * as to the defendant, at the date of the summons which is served on him;'” and in all cases the summons served must be issued before the bar of the statute is complete. (Rogers v. Redick, 10 Neb., 332; Baker v. Sloss, 13 Neb., 230.) This conclusion renders unnecessary an examination of the question to what extent, if at all, the rights of the appellee were affected by the neglect to file for record the assignments of the mortgages. For reasons stated the decree of the district court is reversed and the cause remanded with directions that the decree be so amended as to allow the appellee’s lien subject to the mortgages of appellants.
Reversed and remanded.