125 Ky. 535 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
This action involves a question of priority between a mortgagee and certain materialmen who furnished building material used in the erection of the house by which the payment of the mortgage was secured. Chittenden and Whitehouse owned a lot. in Marion, Crittenden county, Ky., upon which they erected a two-story dwelling house. In order to secure funds sufficient to erect the building, they borrowed from the appellant, John Scheas, $2,700, for which they executed their notes, the payment of which was secured by a mortgage on the building and lot, and which was recorded in the county clerk’s office of Crittenden county on the 7th day of August 1905. Afterwards they borrowed from the appellant the
Section 2463, Ky. Stats., 1903, which gives a lien in favor of mechanics and materialmen, in so far as applicable to the subject in hand, is as follows: “ * * * And said lien on the land or improvement shall be superior to any mortgage or incumbrance created subsequent to the beginning of the labor or the furnishing of the materials; and said lien, if asserted as hereinafter provided, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials: Provided, that such lien shall not take precedence of a mortgage or other contract lien or bona fide conveyance for value without notice, duly recorded or lodged for record according to law, unless the person claiming such prior lien shall before the recording of such mortgage or other contract lien or conveyance, have filed in the clerk’s office of the county court
It will be observed that the foregoing excerpts from the mechanic and materialmen’s statute contemplates the filing of two different and distinct notices — one is a preliminary notice, which provides for a priority of lien in favor of the mechanic or materialman, and the other is the final notice which preserves this lien for a given time. All of the materialmen involved-in this action gave the final notice provided for by section 2468, but none gave the preliminary notice required by section 2463. So far as this case is con
In the case of Harris’ Assignee v. Gardiner, etc., 68 S. W. 8, 24 Ky. Law Rep. 103, in contrasting the difference between the materialman’s lien of 1893 and that of 1896 (the present statute), it was said: “The difference between the law in force in 1895 and the law after the amendment in 1896, so far as it affects the question here, it that under the law of 1893 the lien of the mechanic, when properly asserted, related back to the timé when the first work was done or material furnished, and subsequent purchasers and mortgagees were, by law, required to take notice of the mechanic’s rights (Ky. Stats., [Ed. 1894] section 2463), but, as amended in 1896, the mechanic must
But it is said, and the trial court so concluded, that the mortgagee did not furnish proof that he did not have actual notice of the existence of the material-men’s liens. This he was not required to furnish. His mortgage was set up, and the date of its being recorded was set out in every pleading filed by the materialmen. He proved by the affidavit of the mort
It therefore follows that the: court erred in postponing the lien of the appellant to that of any of the materialmen. He was entitled to priority over them,
and it should have been awarded. For this, reason, the judgment is reversed for proceedings consistent with this opinion.