17 Ind. 534 | Ind. | 1861
This was a proceeding, under the statute, to enforce a mechanic’s lien. The appellees were the plaintiffs, andAseZ Waldo, Jane Waldo and Ousiavus Sehurman were defendants. The complaint alleges these facts: In the year 1859, the plaintiffs furnished, for a new brick building on lot No. 10, in square No. 93, in the city of Indianapolis, 69,000
The relief prayed is, that the lot and building be sold for the satisfaction of said lien, and for general relief, &o.
A demurrer to the complaint was filed and overruled. This presents a question upon the sufficiency thereof. It will be perceived that the sale and conveyance of the premises is alleged to have taken place before the notice of the lien was filed. It was held in Green v. Green, 16 Ind. 253, that under the peculiar phraseology of the present, statute in reference to mechanics’ liens, a lien does not attach, is not acquired, until notice filed, although this Court held differently, (Goble v. Gale, 7 Blackf. 218,) under a statute of such different phraseology that we could not consider it a ruling that was, to any considerable degree, binding in said case. We are now referred to the case of Vandyne v. Vanness, 1 Halst. Ch. R (N. J.) 485. This case is not at all in point, because that statute was so different from ours; it created a lien for materials, &c. that continued, &c. for two years, but no longer, unless the claim therefor should be filed and suit commenced in six months, &c. In the case cited the Court recognizes the fact that the statute creates the lien. We think our statute does not do so, but gives a
The Court erred in overruling the demurrer to the complaint.
Per Curiam. — The judgment is reversed, with costs. Cause remanded, &c.