Mitchell v. Penfield , 8 Kan. 186 ( 1871 )

Tbe opinion of tbe court was delivered by

Yalentine, J.:

David H. Mitchell tbe plaintiff in error and plaintiff below held a promissory note against Alfred S. Penfield secured by a mortgage on a certain warehouse. Thomas Cutts (since deceased,) held a mechanic’s ben on tbe same warehouse, and tbe only question in tbe case is, whose is tbe prior lien? The mortgage was made and recorded June 28th, 1869, and on that day tbe mortgage lien attached. Tbe court below finds that prior to that time, and about tbe 22d of June, 1869, tbe contract upon which tbe mechanic’s lien is founded was made, and that on that day tbe mechanic’s lien attached. Two questions now are presented for our consideration: First, Is tbe finding of tbe court below with reference to tbe dates of said contract, sustained by sufficient evidence? Second, If so, is tbe conclusion of law that tbe mechanic’s lien attached at tbe date of tbe contract correct?

We must answer both of these questions in tbe affirmative. Tbe testimony of Penfield is positive, that tbe said contract was made about tbe 20th of June, 1869; that be told Mitchell before he game the mortgage that be bad engaged tbe lumber of Cutts to complete tbe warehouse, and that be did afterwards use it in completing tbe warehouse. Tbe only evidence tending to prove that tbe contract was made after tbe 28th of June, 1869, is a statement filed by Cutts January 26th, 1870, with tbe clerk of tbe district court under section 633 of tbe civil code, (Gen. Stat., 756,) in order to preserve bis mechanic’s lien and prevent it from lapsing. Said statement is, “that tbe contract was made on or about tbe 30th day of June, 1869.” TMs statement does not pretend to fix absolutely and' definitely tbe time wben tbe contract was made, and it certainly does not prevent tbe representatives of Cutts from showing tbe true time wben it was made. Tbe statement bad not been filed wben Mitcbell received tbe mortgage, and therefore be could not have been misled by it. Tlie lumber was furnished under this contract from June 30th, 1869, to July 29th,-1869. Under section 630 of tbe code a mechanic’s lien dates from the time of malvmg the contract. Tbe judgment of tbe court below is affirmed.

Kingman, O. J., concurring. Brewer, J., not sitting in tbe case.