12 Ind. App. 648 | Ind. Ct. App. | 1895
The question presented by the record in this case involves the determination of the priority of liens.
The question arises upon the facts found by the court in its special finding, which are conceded to be correct, and are as follows:
That on the 28th day of May, 1892, one Harrison J. Gregory was the legal owner of lot two hundred and eighty-seven (287) in Hazelwood addition to the city of Anderson, in Madison county, and State of Indiana; that on said day said Gregory and his wife mortgaged said lot to “N. C. McCullough & Co.,” a partnership firm; that all of the partners in said firm were properly made parties in this suit; that said mortgage was given to secure the payment of the note of the said Gregory in the sum of $125 and interest, and that said mortgage was duly recorded in the recorder’s office of said county on the 28th day of May, 1892, and that said note is still unpaid; that on September 9,1892, the common council of
Upon these facts the court concluded as follows:
“The court states as its conclusions of law upon the foregoing facts, that said Lukens and said Burke each have a lien upon said lot, which they are each entitled to have foreclosed herein; that the lien of said Lukens is superior to the lien of said Burke, and that said liens should be foreclosed accordingly.”
The statute section 4290, R. S. 1894 (section 814, E. S.), provides that assessments for street improvements “with the interest accruing thereon, shall be a lien upon the property so assessed and shall remain a lien until fully paid, and shall have precedence over all other liens, excepting taxes.”
It is contended, however, by appellant that although the assessment for the street improvement under which
The statute, section 4290, supra, creating the lien, provides that it shall have precedence over all other liens, excepting taxes. A strict construction of the wording of the statute fully warrants appellant’s assumption that the last lien of this kind acquired must have precedence over all other liens of a like character. The theory of the law is that every improvement of this character to the extent of the improvement enhances the value of the property. So every improvement made increases the security for the payment of assessments previously made. The only lien over which an assessment for street improvements shall not take precedence is that for taxes. It follows, therefore, that the last assessment for such improvement must take precedence as a lien over those previously made.
The court, therefore, erred in concluding that the appellee’s lien was senior to the appellant’s.
Judgment reversed, with instructions to the court below to restate its conclusions of law in conformity with the views heretofore expressed.