98 Iowa 468 | Iowa | 1895
Lead Opinion
IV. Defendant, W. L. Culbertson, shows by his answer that on October 5, 1891, Louise and Mr. Millei executed to him their mortgage upon the real estate in question to secure the payment of their promissory note of that date for one thousand five hundred dollars, payable October 5, 1892, with interest from date. He avers that said mortgage is superior to plaintiff’s liens, 'and aslrs that it be so declared. No issue was joined upon the averments of this answer, and on the trial it was stipulated as follows: “It is agreed that the mortgage of W. L. Culbertson, as shown by Mortgage Book 8, page 103, was filed October 6, 1891, and includes the lien premises described in plaintiff’s petition; that the plaintiff’s first claim for a lien was filed in Mechanic’s Lien Record No. 2, page 55, April 26, 1892; and that the first item of material was delivered thereon May 7, 1891, and the supplemental statement for a mechanic’s lien was filed November 11,1892, in. Record No. 2 of Mechanics’ Liens, on page 66, and the first item was delivered May 13, 1892, on the supplemental lien.” Plaintiff’s counsel contend that defendant Culbertson does not allege nor prove that anything is due upon his note and mortgage. His answer will not bear such a construction, and under the stipulation he is entitled to a decree establishing his lien and the order thereof. He does not ask foreclosure or judgment other than for costs. According to the dates shown in the stipulation, plaintiff is entitled to priority over this mortgage upon its first lien, and the mortgage is entitled to priority over plaintiff’s second lien. The judgment of the district court is
Rehearing
Supplemtal Opinion on Re-hearing.
An error in the concluding words of the foregoing opinion (62 N. W. Rep. 742) led us to grant a re-hearing. The petition presents simply the one question, and the claim of error meets with no resistance. The opinion places the Culbertson mortgage as superior to plaintiff’s second lien, and it is in this that the error consists. Plaintiff’s two liens are superior to the Culbertson mortgage, and the opinion is so modified as to show that conclusion. — Reversed.