66 Iowa 638 | Iowa | 1885
The only question to he determined is, which party is entitled to the prior lien. The defendant Weller, under a contract with the mortgagor, furnished materials for the erection of certain buildings on the mortgaged premises. The contract was made in December, 1880, and the last of the materials was furnished on the twenty-first day of February, 1881. The statement claiming a mechanic’s lien was filed in the clerk’s office on the thirtieth day of December, 1881. The mortgage was executed on the first and filed for record on the second day of December, 1881. It will be observed that the mortgage was filed for record after the defendant was entitled to a mechanic’s lien, but before any statement claiming a mechanic’s lien was filed. It will be further observed that the statement claiming a mechanic’s
I. That the mortgage was given to secure an antecedent debt, and therefore the lien of the mortgage is inferior to the defendant’s lien. But it satisfactorily appears that the time for the payment of such antecedent debt was extended, and the mortgage was given to secure the new indebtedness thus incurred. This constitutes a good consideration for the mortgage. Sullivan Sav. Inst v. Young, 55 Iowa, 132.
II. The statute provides that the statement for a mechanic’s lien must be filed by the principal contractor within ninety days from the date on which the last of the material is furnished. “But a failure or omission to file the same within such period shall not defeat the lien, except against purchasers or incumbrances in good faith, without notice, whose rights accrued after .ninety days, * * * and before any claim for the lien was filed.” McClain’s Code, 598, § 6. It is insisted by the plaintiff that the burden of proof to show such notice is on the defendant, and the latter insists that the burden is on the plaintiff. It has been held in a contest between the holder of a prior mortgage, but which is recorded after a subsequently executed mortgage, that theburden to show that the latter had notice of the prior mortgage is on the holder of the last-named mortgage. Fort v. Burch, 6 Barb., 60; Marshall v. Dunham, 66 Me., 539; McCormick v. Leonard, 38 Iowa, 272. See, also, Nolan v. Grant, 53 Iowa, 392. There is no difference in this respect between mortgages and mechanic’s liens. Both stand on precisely the same footing, so far as either actual or constructive notice is concerned. We have examined the evidence, and find that the defendant has failed to show by a preponderance of the evidence that the plaintiff
III. We have assumed that the last of the materials was furnished on the twenty-first day of February, 1881. The affidavit accompanying the statement claiming a lien states such date to have been on the twenty-first day of February, 1880. This is evidently a mistake, because the contract under which the materials were furnished was not made until several months after the last-named date. The burden was on the defendant to show either that the statement was filed within ninety days after the last of the materials was furnished, or that the plaintiff had notice of such lien at the time the mortgage was executed, and, as he has failed to do so, except as shown by such affidavit, the lien of the mortgage must be declared to be superior to the claimed lien of the defendant.
Eeversed.
