McKenzie v. Fellows

52 So. 628 | Miss. | 1910

Smith, J.,

delivered the opinion of the- court.

Appellee filed a bill in the court below to cancel a certain deed made to appellant to the land in controversy under a sale by virtue of a special execution issued upon a judgment rendered in a mechanic’s lien proceeding. In February, 1906, appellant instituted a proceeding against J. D. Stewart, the then owner of the property, to enforce a mechanic’s lien on the property. The contract under which the lien arose was a verbal one, and of course was not recorded. No lis pendens notice was filed in the office of the chancery clerk, as required by Code 1906, § 3148. After many continuances this cause resulted in a judgment by default agáinst the said Stewart on the 27th of October, 1906, and the property in controversy was ordered to be sold to satisfy said lien. On August 31, 1907, execution was issued on this judgment, and on the. 7th day of October thereafter appellant became the purchaser of the property at execution sale. Shortly thereafter appellee filed her bill in the court below, alleging that she was the owner of said land, and on the 4th day of September, 1906, the said Stewart conveyed same to one Frank Gardner, who on December 26, 1906, conveyed same to appellee; that appellee was a bona fide purchaser thereof for value, without notice of the pendency of the suit above referred to, or of the judgment rendered therein; and that she learned of same for the first time after the execution sale had been made. She prayed for the cancellation of the deed as a cloud upon her title. To' this bill a demurrer was interposed by appellant, which demurrer was overruled, and an appeal granted to this court, to settle the principles of the cause.

Section 3058 of the Code, after creating the mechanic’s and materialman’s lien, provides that same “shall take effect as to purchasers or incumbrancers for a valuable consideration, without notice thereof, only from the time of commencing suit to enforce the lien,” etc. Sections 3148 and 3151 of the Code deal with the same general subject-matter as section 3058— that is, liens to be enforced by suit — and are as follows:

“3148. "When any person shall begin a suit in any court, whether by declaration or bill, or by cross-complaint, to enforce a lien upon, right to, or interest in, any real estate, unless the claim be founded upon an instrument which is recorded, or upon a judgment duly enrolled in the county in which the real estate is situated, such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the nature of the lien, right, or interest sought to be enforced. The clerk shall immediately file and record the notice in the lis pen-dens record, and note on it and in the record the hour and day of filing and recording.”

“3151. If a person beginning any such suit, by declaration, bill, or cross-complaint affecting, or if an officer levying any process upon real estate, shall fail to’ have the required notice entered in the lis pendens record, such suit or levy shall not affect the rights of bona fide purchasers or incumbrancers of such real estate, unless they have actual notice of the suit or levy.” •

Section 3058 must therefore be construed in connection with these two latter sections, and it therefore necessarily follows that, when a mechanic’s lien.i's sought to be enforced against real estate, the lis pendens notice therein provided for must be .given in order to affect bona fide purchasers for value without notice.

The chancellor was correct in overruling the demurrer. The decree of the court below is affirmed, and the cause remanded, with leave to appellant to file his answer within thirty days after mandate filed in court below.

Affirmed.