101 Ky. 321 | Ky. Ct. App. | 1897
beliybmp the opinion oe the court.
On the 27th of September, 1892, P. J. & J. M. Johnson executed and delivered to the Kentucky Building and Loan Association a mortgage on certain property in Bowling Green to secure a note for $650. The Johnsons desired !o build a house, and by this means sought to obtain money from the association, from which, in part, they were tO' erect a house on 1he property embraced in the mortgage. While their note was executed and'delivered for the whole amount, yet the money was to be paid in installments as the work progressed on the house, with the view of giving the association sufficient surety for the money loaned. Dr. Blakley had a mortgage on one of the lots, and $260 of the money borrowed was applied to the payment of his debt. One hundred and thirty-seven dollars of it went to the man who-built the foundation for the house; $50 to Kister on his lumber account. In fact all of it except a few dollars was used by the Johnsons for the purpose of paying cost of the erection of the house. Kister was a lumber man, who, under a contract with the Johnsons, furnished them lumber which was used in the construction of the house. 1-Te began to deliver lumber on the 24th of October following the execution and recording of the mortgage. On the 16th of December, 1892, he gave notice that he had filed his lien for the balance
In our opinion this section does not relate to one whose purchase antedated the time the material was furnished for which a lien is asserted. The language of it contemplates that the purchase is after the labor has been performed or the material furnished, for which the laborer, mechanic, or material man is entitled to a lien. It does not refer to the purchase before the contract was made for the labor or
This 'section of the statute certainly has no reference to a' mortgage which had been executed before the contract had been made or the labor employed or material furnished in the erection of the improvement. It was not necessary to have legislation to protect the mortgagee, whose mortgage was executed before the erection of the improvement. This makes certain the correctness of our conclusion
The judgment is reversed, with directions for further proceedings to conform to this opinion.