— This action was instituted on January 28, 1899, by appellee to enjoin appellants, Marquis D. L. and Elmer B. Martin, together with Alonzo A. Crandal, sheriff of Huntington county, Indiana, from selling the north half of lot number sixty-two in the city of Huntington, county aforesaid, under a decree foreclosing a lien created under the mechanic’s lien law for material furnished. A trial
The faсts material to the cardinal question involved herein, as the same are disclosed by the complaint, and under the special finding, are, in substance, as follows: In February, 1878, Jacob Wintrode, the owner thereof, sold and conveyed lot number sixty-two in the original plat of the city of Huntington to Elizabeth Hullibarger, Roxana Ilelser, and Mary E. Helser. Roxana and Mary E. Helser, under the provisions of the deed of conveyance, were invested with the fee simple of the said premises, and the said Elizabeth Hullibarger with thе use thereof so long as she remained a widow. At the time of this conveyance by Wintrode, said grantees executed to him an indemnifying mortgage on the premises to sаve him harmless against any liability arising out of a certain mortgage. This latter mortgage was subsequently foreclosed, and Wintrode was compelled to pay the judgment rendered in the foreclosure proceedings, to the amount of $262. On April 11, 1878, Roxana and Mary E. Helser, together with Andrew W. Helser, husband of Roxana, mortgaged said lot to John Sidles, to secure the payment of a note of $100. This note and mortgage were subsequently assigned for value to one B. M. Cobb. In the summer of 1885 Roxana and Mary E. Helser, the owners in fee of said lot, made improvements on a house situated on the north half thereof; and in making the same they purchased material to the amount of $103.69 from aрpellants Martin & Martin, and within sixty days after furnishing said material the latter filed a notice in the recorder’s office of Huntington county, Indiana, of their intention to hold a lien on thе north half of said lot for the amount of material so furnished, and on November 5, 1886, five days before the expiration of the year allowed by law for foreclosing said liеn, Martin & Martin instituted an action in the Huntington Circuit
The question presented under the law applicable to the facts is, was this judgment a correct result? Section 7259 Burns 1901, relating to mechanic’s and material men’s liens, prоvides that any person having such lien may enforce the same within one year from the time the notice of the lien was filed for record, or, if a credit be given, within a like period from the expiration of such credit. If not enforced, or, in other words, if án action to foreclose the lien is not commenced within the time prescribed by the statute, then in that event the law declares that the lien shall be null and void. A person holding a mortgage lien on the premises upon which there is a mechanic’s lien must be made a party to the action to enforce the latter; otherwise his rights under his mortgage will not be affected by the judgment rendered therein. Deming - Colborn Lumber Co. v. Union, etc., Assn.,
The facts disclose that the person or persons holding the mortgages, under which appellee claims, were not made parties by appellants Martin & Martin in their action to еnforce their lien, nor were said appellants made parties by appellee to his foreclosure proceedings. Consequently, under the circumstanсes, neither of said parties was affected by the judgment rendered in the proceedings of the other. As the period of time prescribed for the enforcemеnt of appellants’ lien expired in November, 1886, such lien could not thereafter be enforced against any one, for, under the
Under the law applicable to the facts, we are compelled to hold that аppellants’ attempt to procure a sale by the sheriff of the premises in dispute, under and by virtue of the order of sale obtained in their proceedings foreclosing their lien against the owners only, was illegal; hence the proposed sale was properly enjoined. As shown, appellants in their action foreсlosing their lien recovered a personal judgment against Roxana and Mary E. Ilelser, the owners of the equity of redemption in and to the premises in controversy. This judgment itself created a lien on their equity of redemption, and, inasmuch as appellants were not parties to appellee’s action to foreclose his mortgage, this judgment lien was not cut off or barred by the decree rendered therein. If appellants Martin & Martin at the commencement of the action herеin had any enforceable right against appellee, it could be nothing more than the right to redeem the premises from the sale under and through which appellеe claims to hold the realty, but in respect to this question we do not decide. See, however, Union; etc., Assn. v. Helberg, supra, and cases cited; Holmes v. Bybee,
Other rulings in the trial court are assailed as erroneous, but, even if this contention were true, the judgment of
The judgment is affirmed.