Smith v. Shaffer

Brent, J., delivered the opinion of the Court. The record in this case discloses some irregularities, which prevent an affirmance of the decree. ⁵⁷⁸ The mortgage to the Independent Savings and Building Association of Laurel, dated the first of December, 1874, is a lien of prior date to the mechanics' lien, for the enforcement of which the bill of complaint is filed. It is objected that this association is improperly made a party to this proceeding, so far as this mortgage is concerned, and that the decree should not have bepn passed against them. We think the objection is well taken.

They do not seem to have answered the bill, and as prior mortgagees, the decree is improvidentlv passed against them. The sale of the property to pay the mechanics’ lien must be had subject to this prior encumbrance, unless the encumbrancer comes in and consents to be made a party. ’ It is also objected that the notice of the lien is not in time so far as some of the materials mentioned in the bill of particulars are concerned. There seems to have been three separate deliveries of materials, but whether upon a continuous contract, or separate contracts, does not appear from any proof in the record. ■ The- léarned Judge of the Circuit Court, in the opinion filed' by him, says that the notice was duly given, and that “ the sale and delivery of the lumber is fully shown.” As the record contains none of the proof taken, the statement of .the Judge as to what was proven before him is conclusive. Upon this appeal, therefore, the materials must be considered as having been delivered under one continuing contract, and the notice as being in time to cover all the items charged in the bill of particulars.

The decree, is informal in two respects. It does not