Opinion
Decided January 14, 1929.
Mechanics' liens — Mortgages prior — Materials delivered before person ordering same acquired title to realty — Deliveries not made after construction commenced, when — Section 8321, General Code — Mortgages listed in registration of land title certificate, have priority — Sections 8542 and 8572-1 et seq., General Code — Affidavit of intention to furnish material necessary to acquire prior lien.
1. Liens for building material, ordered by one not owning realty when initial deliveries were made, are not necessarily prior to mortgages thereon, because material was furnished after commencement of excavation, as required by Section 8321, General Code, and before recording of mortgages, and liens were filed within 60 days after furnishing last material.
2. Materialman, to avail himself of priority, granted by Section 8321, General Code, over mortgage on realty registered under Sections 8572-1 to 8572-108, must file affidavit of intention to furnish material with county recorder for notation on certificate of registration; provisions of Section 8321, which modified Section 8542, having been modified by Sections 8572-68, 8572-89 and 8572-97.
3. One not filing affidavit of intention to furnish material, as required by Section 8572-68, General Code, to entitle his lien to priority, granted by Section 8321, over mortgage on realty registered under Sections 8572-1 to 8572-108, cannot be heard to complain, even in court of equity which follows law, because provisions of Section 8321, modifying provisions of Section 8542 in favor of mortgagee, are not applied to his benefit.
ERROR: Court of Appeals for Hamilton county.
Mr. Arthur H. Fix and Mr. Edwin G. Becker, for plaintiff in error.
Mr. Malcolm McAvoy, Mr. D.R. Tate, Mr. Wm. A. Rinckhoff, Mr. Paul P. Hengge, and Mr. Clarence M. Smith, for defendants in error.
These cases, which have been consolidated, come into this court on error from judgments of the court of common pleas, marshaling liens upon two separate pieces of real estate, owned by Robert M. Wilson.
It is claimed that these judgments are contrary to law, in that certain mechanics' liens of materialmen were given priority over mortgages recorded previous to the filing of the liens. And it is further claimed that error was committed, in that said judgments were not sustained by the weight of the evidence.
The facts are that Ida Pillman deeded the property in question to Robert M. Wilson. Transfer certificate of title was issued to Robert M. Wilson on July 29, 1927, 2:38 p.m., by the recorder of Hamilton county, and entered upon the surveys of registered lands, all in conformity to Sections 8572-1 to 8572-108, General Code, the chapter of the Code dealing with the registration of land titles. This certificate recites that, by transfer from Ida Pillman, Robert M. Wilson, on the 29th day of July, 1927, 2:38 p.m., is the owner in fee simple of the property in question, subject to the following liens and lesser estates:
First. A mortgage to N.B. Trendler, dated 28th day of July, 1927, registered 29th of July, 1927, 2:39 p.m., for $1,500, on lot 111; said mortgage being assigned 21st of October, 1927, to Edwin G. Becker.
Second. A mortgage to N.B. Trendler, dated 28th of July, 1927, registered 29th of July, 1927, 2:39 p.m., for $1,500, on lot 112, assigned to Edwin G. Becker 21st of October, 1927.
Third. A mortgage to William A. Rinckhoff, dated 28th of July, 1927, registered 29th of July, 1927, 2:45 p.m., for $500, on lot 111.
Fourth. A mortgage to William A. Rinckhoff, dated 28th of July, 1927, registered 29th of July, 1927, 2:45 p.m., for $570, on lot 112.
The evidence shows that on the 13th day of July, 1927, one keg of nails and four sash frames were placed upon the premises in question by the Norwood Sash Door Company, one of the lien claimants; that on the 27th of July, 1927, a quantity of cement and sand was placed upon the premises by the Moores-Coney Company, another of the lien claimants.
There is some evidence that excavation of a cellar of one of the houses to be placed on one of these lots was commenced on the 19th day of July, 1927.
The evidence is clear that construction of the buildings, placed upon these premises, had not commenced until the 1st of August, 1927.
It is urged that, because material had been furnished by the lien claimants after the commencement of excavation of the premises, and prior to the recording of the mortgages in question, and the liens had been filed within 60 days after the furnishing of the last material, the liens take priority over the mortgages. In view of the fact that, at the time the initial deliveries of material were made, Wilson did not own the property, and of the fact that Wilson ordered the material, we are not prepared to admit that this conclusion follows.
We are further of the opinion that the weight of the evidence does not indicate that there had been such a commencement of construction, excavation, and improvement upon the premises at the time of the initial deliveries of material as would bring the liens within the statute, Section 8321, General Code, requiring deliveries to be made after such commencement in order to permit the perfecting of a lien later on.
However, the title to the real estate involved having been registered in conformity to the chapter of the General Code relating to the registration of land titles, it is our opinion that the provisions of this chapter govern in the instant cause.
Under Section 8542, General Code, a mortgage is effective as a lien upon real estate from the date it is filed for record. The provisions of this section were modified in their application to mechanics' liens by the provisions of Section 8321, General Code, a later legislative pronouncement, giving mechanics and materialmen preference over mortgagees whose mortgages were filed subsequent to the date upon which labor or material was furnished, after the commencement of construction, excavation, or improvement on the real estate. Rider v. Crobaugh, 100 Ohio St. 88, 95, 125 N.E. 130.
In the same manner in which the provisions of Section 8542 were modified by Section 8321, approved May 2, 1913, the provisions of this latter section are modified by and made subject to the provisions of Sections 8572-89, 8572-68, 8572-97, approved May 6, 1913.
Where real estate has been registered in accordance with the provisions of the Code relating to the registration of land titles, a materialman, in order to avail himself of the priority granted by Section 8321, General Code, over a mortgage, must file with the county recorder an affidavit indicating his intention to furnish material, who is directed by law to forthwith enter a memorial thereof upon the registered certificate of title, stating the exact time when the affidavit was filed and the purport and nature thereof. The materialman does not lose his lien. He is only required, in the case of a registered land title, to have his intention to furnish material noted upon the certificate of registration. If he does not comply with the provisions of the later statute, Section 8572-68, General Code, he cannot be heard to complain, even in a court of equity, which follows the law, because the provisions of an earlier statute are not applied to his benefit in modifying the provisions of a still earlier statute in favor of the mortgagee.
For these reasons, the judgments of the court of common pleas will be modified, and judgments will be entered here in accordance with this opinion.
Judgments accordingly.
HAMILTON, P.J., and CUSHING, J., concur.