24 Ark. 151 | Ark. | 1863
delivered the opinion of the court.
This was a proceeding by scire facias to establish a mechanic’s lien.
On the 9tli of April, 1860, James Flora, the mechanic, filed in the office of the clerk of the circuit court of Jefferson county, an account, suborn to, against Horace G. Loring, amounting to $116.00, for work done, and materials furnished, upon a house situated on lots 7 and 8, block 46, Woodruff’s addition to the town of Pine Bluff.
On the same day an abstract of the account was entered in the judgment docket, and a sawe facias issued against Loring, the debtor, and Wm. F. Owen, alleged to be in possession of the premises, claiming by purchase, etc.
Owen filed five pleas, th q first, second, third and fifth alleging, in general terms, that on the 14th March, 1860, and before Flora filed his account in the clerk’s office and caused an abstract thereof to, be entered in the judgment docket, he purchased the building and lots of Loring for a valuable consideration.
ThefouHh plea alleged that the work and labor and materials furnished were not worth one hundred dollars and over.
The court sustained a demurrer to the pleas, and rendered a personal judgment against both of the defendants for the amount of the account, and ordered that the judgment constitute a lien upon the house and lots’until paid, etc.
The defendants brought error.
The object of the first, second, third and fifth pleas was to show that Owen acquired title to the property from Loring before the statutory lien of Flora attached, and thereby defeated it.
Under the statute, where there is no registered contract, the lien of the mechanic commences at the time he files his account, properly made out and verified by affidavit, in the clerk’s office, and causes an abstract thereof to be entered in the judgment docket, and not before. Gould's Dig., 112, sec. 4, 26; Hicks et al. vs. Branton et al., 21 Ark., 188.
If, before the lien of Flora was thus fixed, Owen obtained a valid title to the property, by some legal mode of conveyance, and Flora had constructive notice thereof by registration of the conveyance, or actual notice, his lien was defeated.
In McCulloch vs. Caldwell, 5 Ark., 237, the party contesting the mechanic’s lien, alleged in his plea, in general*terms, that he purchased the property before the lien attached, “ on execution on sundry judgments,” etc., and the court held the plea bad because the pleader failed to set out the judgments and executions under which he purchased and acquired title.
In this case the pleas are more general than in that, for they fail to allege that Owen obtained title to the property by any deed or conveyance whatever — and the court properly sustained the demurrer to the pleas.
The statute only allows the mechanic a lien where his demand exceeds one hundred dollars. See. 1. It was doubtless the object of the fov/rth plea to put in issue the amount of the demand, and to defeat the lien, if upon trial, it turned out not to exceed a hundred dollars as stated in the account filed, etc.
The only ground of objection taken to the plea in the demurrer, was(ithat the plea was not sworn to.
We know of no law requiring such a plea to be supported by an affidavit, and if it were required, the want of it can only be taken advantage of by motion to strike out, and not by demurrer, as has been repeatedly decided by this court.
The rendering of the judgment against Owen personally, for the debt was a gross error. He was in no way personally liable for the demand, and was made a party merely for the purpose of contesting his claim to the property on which Flora sought to fix his lien, and subject it to the satisfaction of his debt.
For the errors above indicated, the judgment must be reversed, and the cause remanded for further proceedings.
