No. 17,634 | Neb. | Feb 27, 1914
Action to foreclose a mechanic’s lien. The only question in the case is as to whether the plaintiff’s lien or the lien of a mortgagee given to the Occidental Building & Loan Association, defendant, is entitled to priority. The district court found that the plaintiff had the first lien. The Building & Loan Association appeals.
It was admitted at the trial that the first delivery of material under plaintiff’s lien was upon November 30, 1909. It is also admitted “that the mortgage of the Occidental Building & Loan Association vVas delivered to it upon the day of its execution.” The note and mortgage are dated November 26, 1909; the acknowledgment was taken December 1, 1909, and the mortgage was recorded on December 6, 1909. Defendant insists that the admission that the mortgage was delivered “upon the day of the execution” means that it was delivered on November 26, before any of the material was delivered; while plaintiff insists that the mortgage was not “executed” until it was acknowledged, and that, since it was not recorded until December 6, it was junior to the plaintiff’s lien by virtue of the recording act. There is no testimony in the record showing what took place as to delivery when the mortgage was signed. In Brown v. Westerfield, 47* Neb. 399, it was held that “an acknowledgment is no part of the deed con
In Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207" court="Neb." date_filed="1893-06-06" href="https://app.midpage.ai/document/henry--coatsworth-co-v-fisherdick-6648350?utm_source=webapp" opinion_id="6648350">37 Neb. 207, 217, the owner of the property made a mortgage to one D., dated August 1, 1889, but not recorded until August 26, and executed about that date. The material-men delivered materials before the date of recording of the mortgage. It was held their lien was prior to that of the mortgage. While the language is not entirely clear, it seems that the recording of the mortgage, and not its execution, was considered as the determining date.
In Bradford v. Anderson, 60 Neb. 368" court="Neb." date_filed="1900-06-20" href="https://app.midpage.ai/document/bradford-v-anderson-6653394?utm_source=webapp" opinion_id="6653394">60 Neb. 368, under a similar state of facts, the material-man’s lien was held subject to the lien of a mortgage because he had actual knowledge of the unrecorded mortgage before any materials were furnished. It is said, after quoting section 16 of the recording act: “It is obvious that under this section a mortgage is effective from the date of its execution as to all persons having actual knowledge of the execution of the mortgage, but only from the date of the record of the instrument is it effective as to creditors and subsequent purchasers in good faith having no notice of the mortgage.” See, also, Phillips, Mechanics’ Liens (3d ed.) sec. 234.
The judgment of the district court was right, and is ■
Affirmed.