166 Ind. 1 | Ind. | 1905
-—Appellee Cyrus Osborn brought this suit upon two notes, one for $850, and one for $1,200,
It is alleged on appeal that the court erred in sustaining the demurrer of appellee Osborn to the intervening petition of appellants.
Appellants averred in their petition, that James O. Winsted, the mortgagor, became the owner of the real estate in question on December 19, 1892, and continued as such owner until July 15, 1901, at which time he made a voluntary assignment of all his property to Henry S. Cox, as trustee for the benefit of his creditors, under the laws of this State; that at the time of the execution of said mortgages said Winsted was, and prior thereto had been, and thereafter until the date of assignment continued, in the business of general farm implement merchandizing; that on July 15, 1901, said Henry S. Cox accepted the deed of assignment, caused the same to be duly recorded, qualified as such assignee, and entered upon the duties of his trust; that on October 5, 1901, said Winsted was duly adjudged a bankrupt by the United States district court for the district of Indiana, and on November 25, 1901, James M. Ogden was appointed and qualified as trustee in bankruptcy of all the property of said bankrupt; that in January, 1902, appellee Osborn commenced this suit, and caused William
The theory of appellants’ petition evidently is that their claims for labor, under the statute, became liens upon the property of their debtor Winsted at the time the title to such property passed to his' assignee under the deed of assignment for. the benefit of creditors, superior to the liens
The statute upon which the claims of appellants are based is §7058 Burns 1901, Acts 1885, p. 86, §3, and reads as follows: “All debts due any person for manual or mechanical labor shall be a preferred claim in all eases against any individual, copartnership, corporation or joint stock company where the property thereof shall pass into the hands of an assignee or receiver, and such assignee or receiver in the distribution and payment of the debts shall be required to first pay in full all debts due for manual or mechanical labor before paying any other, except the legitimate costs and expenses.” The act is entitled: “An act in regard to the payment of employes of companies, corporations, individuals and associations doing business or employing labor in this State.” This statute has not been construed upon the point in question by this or the Appellate Court, but §7051 Burns 1901, Acts 1885, p. 95, which is similar in principle, has been considered in a number of eases.
Appellants’ counsel, in support of their contention, have cited cases in which other statutes upon the subject of liens and preferences have been construed and applied, to which we will briefly refer. Warren v. Sohn (1887), 112 Ind. 213, involved §7448 Burns 1901, §5471 R. S. 1881, by the terms of which a lien is expressly given to miners and other employes for their labor, prior and paramount to all other liens, except the lien of the State for taxes, and the decision is clearly right. Bass v. Doerman (1887), 112 Ind. 390, involved §7051, supra, and was correctly decided upon the facts stated. Watts v. Sweeney (1891), 127 Ind. 116, 22 Am. St. 615, presented the question of priority of the lien of a mortgagee of a locomotive engine and that of a mechanic under §7268 Burns 1901, §5304 R; S. 1881, for
There is no intent manifest in the title, or from any lan- ' guage employed in the body of the statute under consideration, that an employe should have or could acquire a lien upon all the property of his employer on account of general manual or mechanical labqr, It is provided? only, that
The facts alleged in appellants’ intervening petition were not sufficient to show the existence of a lien in their favor upon the mortgaged premises, and the demurrer of appellee Osborn was rightly sustained. The judgment is affirmed.