Opinion
No. 39841
Decided June 15, 1966.
Liens — Priorities — Mortgage and materialmen's liens — Mortgage filed before construction started or materialmen's liens filed.
APPEAL from the Court of Appeals for Allen County.
Two of the defendants herein, Mr. and Mrs. Gauggel, entered into a contract with Century Homes, Inc., for the construction of a house. They also executed and delivered to Century Homes, inc., their promissory note for $15,680 and a mortgage on the property involved in this action.
Century Homes, Inc., transferred and assigned the note and mortgage, before maturity and for a valuable consideration, to The Holgate State Bank, plaintiff herein, which bank was at the time aware of the contract between the Gauggels and Century Homes, Inc. The mortgage was duly recorded. Thereafter, and before any work had been commenced on the mortgaged premises, plaintiff paid Century Homes, Inc., the sum of $13,700.
Several months later, a lumber company and a builders supply company, other defendants herein, filed materialmen's liens on the premises, which liens are not challenged as to validity or amount.
The instant action was brought to foreclose the mortgage, which resulted in a judgment determining that the plaintiff held the first and best lien on the premises in the amount of $15,680.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Coble, Ritenour Wilson, Mr. E.C. Ritenour and Messrs. Kuhn, Wise Mauer, for appellee. Messrs. Meredith, Meredith, Tait Basinger, Messrs. Gooding, Evans Huffman and Mr. F.W. Gooding, for appellants
The question presented is whether the mortgage filed for record prior to the date of the commencement of any construction work on the premises has priority over the materialmen's liens for material furnished subsequent to the filing of the mortgage.
Section 5301.23, Revised Code, provides that "all mortgages properly executed shall be recorded in the office of the county recorder of the county in which the mortgaged premises are situated, and take effect from the time they are delivered to such recorder for record."
The plaintiff's mortgage, having been recorded before any work was done or material furnished, takes priority over the materialmen's liens. Rider v. Crobaugh, 100 Ohio St. 88.
The judgment of the Court of Appeals is affirmed.
judgment affirmed.
TAFT, C.J. ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.