131 Ky. 771 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
Appellee in the first-styled ease is a contractor and 'builder, and was employed by the «Eminence Electric Light Company to furnish the material and erect by . original construction a power house in which to place its engine, dynamo, and other machinery and improvements -in connection therewith. Appellee furnished the material and completed the contract, ceasing to labor thereon the 1st of July, 1904. Thereafter, on the 20 th of August, 1904, he filed a statement in writing, verified by his affidavit, setting forth the balance due him therefor, and for which he claimed a lien. This statement was prepared according to the provisions of section 2494, Ky. St. 1909. On the 10th day of December, 1904, he instituted this action to enforce his lien. Some time during the year 1904, and before the 20th day of August, the Electric Light Company issued 50 bonds, of the value of $1,000 each, and executed a mortgage to secure the payment of them. Appellant Trust Company, of America appeared in this action and filed its pleading by which it claimed to own two or three of these bonds as
The lower court determined that appellee’s lien was prior to appellant’s on the part constructed by him. Appellee’s lien, it is claimed, was secured to him by reason of the provisions of section 2463 or section 2487, Ky. St. 1909. He furnished the material and1 performed1 the labor in this Commonwealth, and his lien existed, although not recorded, when the mortgage under which appellant claims a lien was executed and recorded in the county court clerk’s office. By the terms of section 2463 of the Kentucky Statutes of 1909 any person who performs labor or furnishes material in the erection of a building, by contract with the owner of the real estate upon which it is constructed, shall have a lien thereon. The same section further provides: “And said lien on the land or improvements 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 snob 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 of the county wherein he shall have performed labor or furnished material, or shall ex•pect to perform labor or furnish materials, as aforesaid, a statement showing that he has performed or
Appellee furnished the materials and erected a building for the electric light company, and filed its claim in the county clerk’s office as required by section 2468 of the Kentucky Statutes of 1909, after appellant’s mortgage was recorded, but did not file in such office a statement showing that he had or intended to furnish materials and erect a building on the lot of the electric light company, as required by section 2463, above referred to, before the mortgage of appellant was duly recorded. Therefore, under that section, the lien of appellant is superior to that of appellee. Appellee, however, claims a superior lien by reason of the fact that his erection of the building was for a public improvement and an “original construction,” such as is provided for by sections 2487 and 2492, Ky. St. 1909. It is not necessary for us to determine whether the improvement made by appellee in the case at bar is such as is contemplated and covered by these sections, for the reason that section 2492 contains, in substance, the same clause as section 2463, requiring a person who furnishes materials and erects a building, to enable Mm to obtain priority over an after-recorded mortgage, to file in the county clerk’s office a statement to the effect that he “expects to furnish materials, and erect the building, etc. As appellee failed to file this statement before appellant’s mortgage was recorded, he cannot be adjudged to have priority over
But it is claimed for him that the material furnished and the labor performed by him was in the original construction of the building, and that the amendment of section 2492 of the Statutes, enacted in 1896, requiring a statement to be filed in the county clerk’s office of one’s intention to erect a building, etc., does not apply to him. That part of the amendment referred to is as follows: “Provided, that as to all original construction such lien shall be prior to all liens theretofore or thereafter created on the part so constructed', and on no other part.” We do not so understand the amendment. In our opinion, the only change in the section was to give a claimant for original construction a prior lien over all other liens. The section, as it existed before the amendment, only gave a superior lien over claims thereafter created. Under the amendment the lien is superior to all liens theretofore or thereafter created; but it does not relieve the claimant of the necessity of filing a statement of his intentions to erect the improvement, in order that he may have priority over liens thereafter created.
Having arrived at this conclusion, it follows- that the lower court erred in adjudging that appellee’s lien was prior, or superior, to appellant’s.
The appeal in the case of Trust Company of America, trustee, against Young and others, is from a judgment in favor of Young for $250, W.- P. Thome for $150, D. A. Sachs for $100, and in favor of Prank W. Smith for $40. Some time after Casey instituted this action for the enforcement of his lien, the court, upon showing made, appointed a receiver to take charge of and operate the electric light plant; one
It is not necessary to pass upon the question as to whether or not the services rendered by Thorne and Sachs entitled them to a lien under the statutes referred to, or any other, for the reason that there is an insuperable obstacle in the way of sustaining the judgment appealed from, in so far as it allows their claims. At its May term the court rendered a judgment in behalf of Oasey, and, without objections, closed the judgment with the following language, to wit: “On all other questions arising in this action,
The cases of Bennett v. Tiernay, 78 Ky. 580, and L. & N. R. R. Co. v. Board of Trustees of Elizabethtown District Public School, 105 Ky. 358, 49 S. W. 34, 20 Ky. Law Rep. 1228, expressly settle this question. In the last case cited the court said: “When the parties agreed that a judgment might be entered in vacation, in accordance with the opinion of the circuit court, as of the last day of the previous term, and that judgment was signed by the judge at the next term, it became a valid and binding judgment
Appellant concedes that appellee Smith was an employe and rendered services for the electric company, and that he had a prior lien for the amount of his claim for services rendered by him within the preceding six months before the property of the electric light company passed into the hands of the receiver. Appellant claims, however, the amount allowed him, $40, was too much for the services rendered. It appears from the record that possibly the judgment was for too great a sum; however, it is small, and the matter doubtful, and we are unwilling to disturb it.
Por these reasons, the judgment in favor of Prank W. Smith is affirmed, and the judgment in favor of Young, Thorne, Sachs, and Casey is reversed, and case remanded for further proceedings consistent herewith.
Petition for rehearing by appellee overruled.