32 Kan. 284 | Kan. | 1884
The opinion of the court was delivered by
On September 20, 1881, Ward Bradford made a contract 'with J. S. Danford to erect a building for Danford on lot No. 1, block 28, in Lyndon, Osage county, Kansas. On December 15, 1881, Bradford filed in the office of the clerk of the district court of said county a statement for a mechanics’ lien on said property, for the sum of $1,195, claimed to be due him for the erection of the building. On February 25,1882, Bradford commenced an action in the district court of said county against Danford and one A. B. Cooper, to foreclose the mechanics’ lien. On March 3, 1882,
On December 28, 1882, Edwards commenced this present action in the district court of Osage county, against the said W. A. Madaris and wife and the Lyndon Savings Bank, to recover a judgment against Madaris on said notes, and to foreclose the mortgage as against all the defendants. On January 20,1883, the sheriff’s deed to the Lyndon Savings Bank and the quitclaim deed from the Lyndon Savings Bank to
It will be seen that the whole controversy in this case is between the plaintiff, T. B. Edwards, and the defendant, W. A. Madaris, and that the sole question involved in the case is whether the mortgage executed by Madaris and wife to Dan-ford and assigned by Danford to the plaintiff Edwards was a lien upon the mortgaged property at the time when the judgment declaring it to be a lien was rendered in this case, or
And it may even be questioned whether the mechanics’ lien really had any existence after it was transferred by Bradford, the original owner thereof, to Madaris, the then owner of the property upon which the lien existed. Generally when the owner of land pays off an incumbrance or secures to himself a debt or claim against the land which is an incumbrance, he simply redeems his land from the incumbrance, discharges the incumbrance and destroys the same. But even if the mechanics’ lien had any existence after Madaris purchased it from Bradford, still it must be held to be subsequent and inferior to the mortgage lien created by Madaris, the owner and holder of the mechanics’ lien after he had so purchased it. On March 8, as before stated, Madaris. filed in the district court and in said action his assignment of Bradford’s interest in the mechanics’ lien and in said action, and was himself substituted as the plaintiff in the action; and the action was thereafter prosecuted and conducted by and in the name of W. A. Madaris, as the plaintiff, and the action was no longer prosecuted or conducted by or in the name of Ward Bradford, as plaintiff; and of course any judgment rendered in favor of Madaris in such action could not create a lien prior or superior to the mortgage lien held by Edwards, who was not a party to the action, but whose interests were in fact represented by
Madaris, however, is now claiming under and through the Lyndon Savings Bank. It appears that at the time of the sheriff’s sale the property was not purchased in the name of Madaris, but was purchased in the name of the Lyndon Savings Bank; But we do not think that such fact can make any difference. The Lyndon Savings Bank, under the circumstances of this case, could not be such an innocent purchaser as to obtain rights prior and superior to those of Edwards under his mortgage. The mortgage was on record at the time, and the Lyndon Savings Bank as well as all others was bound to take notice thereof, and was bound to take notice from the record of the mortgage, and the records of the district court in this action, that the mortgage was executed by the person who-was at the time of its execution the owner and holder of the mechanics’ lien; and therefore the Bank was bound to take notice that the lien of the mortgage was prior and superior to the mechanics’ lien, and prior and superior to the lien of any judgment rendered thereon in favor of the holder thereof, who was also the maker of the mortgage. Both the Lyndon Savings Bank and Edwards would in such a case claim under Madaris, and the records of the county showed precisely who had the prior and superior right. Pi’ob-ably, however, the Lyndon Savings Bank was not in any sense an innocent purchaser, for probably it knew, through its secretary, W. A. Madaris, all about the transactions which he had previously had in connection with the mortgage and the mechan
We think, under the circumstances, that the mortgage should be considered as covering all that it did in fact cover when it was executed, and all that the parties believed or intended that it should cover.
The judgment of the court below will be' affirmed.