38 Kan. 459 | Kan. | 1888
The opinion of the court was delivered by
In the fall of 1880, C. A. Sperry, one of the defendants, was the owner of a leasehold interest in lots 166 and 168 on Tyler street, Topeka, and, being desirous of building a dwelling house thereon, applied to one McVean, “trustee,” for a loan of money for that purpose. The leasehold interest being considered insufficient security for the amount of money required, Hentig and wife, at the earnest solicitation of Sperry, executed a mortgage on real estate belonging to them to McVean, to secure the note of Sperry for the sum of seven hundred and fifty dollars. To indemnify and secure Hentig from having to pay the seven hundred and fifty dollars so loaned by McVean to Sperry, and to save Hentig harmless in every respect from the mortgage to McVean, Sperry and wife, on the 13th day of October, 1880, executed a mortgage on their leasehold interest, or estate in said lots 166 and 168 on Tyler street, to Hentig. This mortgage was dated October 1,1880, and recorded October 14, 1880, at 11:21 A.M. At this time, Sperry was a law partner with Hentig, and doing business in Topeka. This sum of seven hundred aud fifty dollars proved
“Any person claiming a lien as aforesaid shall file in the office of the clerk of the district court of the county in which the land is situated, a statement setting forth the amount claimed and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property subject to the lien, verified by affidavit.” (Civil Code, § 632.)
As the statute was not complied with in making and filing the alleged mechanics’ lien, it cannot be said that the lien is prior to the mortgage lien of Hentig. As to Hentig it had no validity whatever.