Summary
reconciling the requirements of Ohio's mechanic's lien statutes with Ohio's land registration statutes
Summary of this case from Burks v. Deutsche Bank Nat'l Trust Co. (In re Goheen)Opinion
No. 22500
Decided June 10, 1931.
Mechanics' liens — Priority over mortgage filed after first labor performed or material furnished — Section 8321, General Code — Land registered under Torrens Act — Section 8572-1 et seq., General Code — Lien claimant to file affidavit of intention to assert lien — Affidavit to be filed with recorder for notation on certificate of registration — Section 8572-68, General Code.
One furnishing material for the erection of a building on land the title to which is registered under Sections 8572-1 to 8572-118, General Code (Torrens Act), in order to obtain priority over a mortgage duly entered upon the certificate of registration subsequent to the date of furnishing the first item of such material, must file an affidavit setting forth his intention to assert a lien against such property for furnishing such material; such affidavit to be filed with the county recorder, for notation on the certificate of registration as provided in Section 8572-68, General Code.
ERROR to the Court of Appeals of Summit county.
This is a proceeding in error to reverse the Court of Appeals of Summit county. The action as begun in the court of common pleas of that county was one in foreclosure, and relates to registered land or property the title to which has been "Torrensized," as provided in the General Code; the sections pertinent to the present inquiry being Numbers 8572-1 to 8572-118. The facts out of which the controversy arises were agreed upon in the courts below, and may be briefly stated as follows:
The premises were sold by the plaintiff, R.K. Crawford, by warranty deed, to the defendants Harry Frank Liston and Marcia L. Liston, on February 4, 1927. The deed was recorded and a registered certificate of title was issued to the Listons on February 21, 1927. A mortgage for the unpaid purchase price was given by the Listons to the plaintiff Crawford on February 4, 1927, but was not filed for record by Crawford until May 18, 1927. On said date a memorial thereof was entered upon the registered certificate.
It may be stated that the Akron Savings Loan Company had a mortgage on this property, but in so far as the question for determination here is concerned, and in the interest of brevity, no reference need be made thereto, as neither party questions the priority of the mortgage of the Akron Savings Loan Company.
The Gough Lumber Company, plaintiff in error here, on February 23, 1927, began furnishing material for a building on said land; on September 24, 1927, said company filed an affidavit for mechanic's lien; and on the same date a memorial thereof was entered upon the registered certificate.
It is the claim of the lumber company that notwithstanding the provisions of the Registered Land Act, its lien, by virtue of the provisions of Section 8321, General Code, with reference to mechanics' liens, dates back to the date of furnishing the first item of material, Section 8321 providing, "The several liens herein provided for shall be liens from the date the first labor was performed, or the first * * * material * * * was furnished by the contractor under the original contract," and that therefore its claim is superior to the mortgage of the plaintiff, Crawford, whose mortgage was entered for record on May 18, 1927, while the first item of material furnished by the lumber company was on February 23, 1927.
The court of common pleas found that the Mortgage of Crawford was a superior lien to that of the lumber company. The case was appealed to the Court of Appeals, and the same conclusion was reached in that court. Error is now prosecuted to this court to reverse such judgment.
Messrs. Slabaugh, Seiberling, Huber Guinther, for plaintiff in error.
Mr. Lee J. Myers, for defendants in error.
The sole question for determination in this case is: As between the mortgage of Crawford and the mechanic's lien of the Gough Lumber Company, which shall have priority? It is our duty to so construe statutes and parts thereof that the same may be reconciled and held harmonious, if this can be done and their intent and purpose be maintained. The mechanics' lien law, by Section 8321, General Code, made provision for equal priority among all mechanics' lien holders, and further provided that the date at which such liens should attach should be "from the date the first labor was performed, or the first * * * material * * * was furnished." Section 8572-68 provides for an affidavit of an adverse claim or lien, which will give such affiant the protection of the general mechanics' lien law, Section 8321, supra.
In this case the lumber company failed to comply with the provisions of Section 8572-68, General Code, by filing an affidavit as one "desiring to assert any * * * lien against registered land * * *," which affidavit would have been memorialized upon the certificate of title as of the date of filing. By reason thereof we are of opinion that the lumber company's lien is inferior to the mortgage lien of Crawford; that the date of the lien of the lumber company is the date of its memorializing on the land certificate, to wit, September 24, 1927; that the lien of Crawford on his mortgage began to run from May 18, 1927.
Other questions suggested by counsel in the argument of this case, not presented by this record, and the determination of which are not necessary for the decision of this case, are not considered.
This being the conclusion reached by the courts below, it follows that their judgments in the premises must be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and ROBINSON, JJ., concur.