McCullough v. Caldwell , 5 Ark. 237 ( 1843 )

By the Court,

Lacy, J.

There is a great deal of extraneous matter in this cause, which it is wholly unnecessary to notice in deciding it. The points upon which it must turn are few and plain. A bare statement of them will be sufficient to settle them all. The plaintiff in error brought a suit to subject the property, on which he erected a building, to his lien as a mechanic. The declaration was filed for the purpose, it would seem, of making the proprietor of the property personally responsible, as well as charging the building and lot oí ground on which it was erected with the lien. The plaintiff, however, abandoned the ordinary remedy, and proceeded by scire facias against the property. To thisproceeding, Lockert, the individual who contracted to have the building put up, and was known to be in possession of the property at the time the lien is attempted to be fixed; and Caldwell, who claims to have bought the property at sherifí’s sale under valid judgments and executions, were parties. Caldwell insists, in several pleas, that these judgments and executions are binding, and bear date ■anterior to the plaintiff’s lien, and have a preference over it. Lockert ¡pleads a final certificate of discharge under the act of bankruptcy, and the Court dismissed the suit as to him. We would here remark, as the case stands at present, that this plea has nothing at all to do with the matter. The suit being by scire facias, as this Court has already decided at this term, in the case of Woodruff vs. Robins, is a proceeding strictly in rem, and therefore Lockert is in no manner whatever personally responsible in the present form of action. If he had been sued in the ordinary way, he would be responsible on his contract, and then his final certificate of discharge in bankruptcy would, if properly pleaded, exonerate him from all liability; and having no interest in the event of the suit, he would be a competent witness to testify between the parties, The pleas of Caldwell would undoubtedly bar the action, if they had been properly pleaded — (and even that defect is probably cured :>y the joinders,) had they been proved on the trial. It is unquestionably true, for so it has been recently adjudged by this Court on full inquiry, that if Caldwell has bought the property on valid judgments and executions, prior to the date of the mechanic’s lien, of course his claim must have preference, and be first satisfied, before the statutory lien can attach. This principle is so obvious and important that it need only be mentioned to command universal assent. In the present case, Caldwell has failed in his pleas to set out the judgments and executions under which he purchased and acquired title; nor has he even attempted to exhibit the judgments and executions on the trial, so far as appears from the rolls. He has wholly failed to prove his pleas, and consequently there was error in instructing the jury to find in the case of Caldwell, as in non-suit. The case then stands simply on the plaintiff’s aver-ments; and they show that Lockert had a possessory interest in the property, and of course that interest is chargeable with the lien, and even that interest is held subject to vested rights of the legal or equitable owner of the estate. As the court below instructed the jury to find as in case of a non-suit there is error in the opinion; for the possessory interest of Lockert is presumed to stand chargeable with the lien, till that presumption is rebutted and overthrown by other proof or pleading in the cause. Judgment reversed»