Buntyn v. Shippers' Compress Co.

63 Miss. 94 | Miss. | 1885

Campbell, J.,

delivered the opinion of the court.

The title acquired by Solomon by his purchase at the sale under the execution in favor of McMillan and Williams & Briggs was with the burden of the lien in favor of the appellant, whose suit to enforce his lien was pending when the suit of McMillan et al. was instituted. As the appellant was not a party to the latter suit, he was not affected by the judgment and sale under it. The law requires all persons claiming liens on the same property to be made parties to a suit to enforce a mechanic’s lien, and- any lienor not thus made a party is unaffected by proceedings in a cause to which he is a stranger.

The second plea of Solomon avers that he acquired title under a sale by virtue of the power in a deed of trust executed January 27, 1883, by the then owners of the property sought to be subjected to the lien of the appellant, and that the Shippers’ Compress Company, by virtue of a contract with which the lien is asserted, never had any title to said property. This is not an answer to the demand of the plaintiff for the enforcement of a lien on the materials furnished by him, and any structure made by his materials and labor. It is impossible that the grantors in the deed of trust, under which Solomon claims title by this plea, should have been the owners of the bricks and other materials furnished by the plaintiff, and the structure made by him as against his lien, asserted by the suit he then had pending.

The third plea; if true, shows only that Solomon, as assignee, has a lien claim on the property embraced in the deed of trust therein set forth paramount to the lien of the plaintiff, who is entitled to enforce his lien by a sale of the property subject to the paramount claim of Solomon. As to the property subject to the lien of the plaintiff, and not embraced in the deed of trust, the plaintiff has the right unaffected by the deed of trust. But the deed of trust is unavailing to defeat the claim of the plaintiff, who had no actual notice of it, and ivas not affected by its being of record, because of the insufficiency of the certificate of acknowledgment by Mrs. Reading, the owner of the property, to entitle it to be recorded. The certificate is that she acknowledged that she signed the instrument, and does not show that she acknowledged that she had delivered it.

The other objection to the certificate is untenable. It shows the certifier to be a justice of the peace and notary public. He had the right to take and certify acknowledgments in his character of justice of the peace, and the description of himself as a notary public and his notarial seal may be rejected.

Without passing specifically on the several rulings of the court below, we have announced our views on the questions litigated between the parties, and reverse the judgment, and remand the case for a new trial.