Atkins v. Volmer

21 F. 697

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: October 15, 1884
• Status: Published

Opinion

Nelson, J.

The foreclosure of the mortgage by advertisement did not effect the mechanic’s lien, and the plaintiff’s title acquired at the sale was subject to the claim of Jlersey, Bean & Brown, who enforced the lien. The defendant Yolmor, who succeeded to their title, took possession of the premises soon after his purchase, and is at least in the situation of a mortgagee in possession by permission of the mortgagor. Although the plaintiff’s mortgage was filed of record previous to the commencement of the proceedings to enforce the lien of defendant’s grantors, it did not thereby take precedence as a prior lien. The mechanic’s lien operated as such from the time of furnishing the materials, which commenced August 22, 1876, and the statutory steps necessary to complete and perfect it being pursued, the plaintiffs acquired, by foreclosure of the mortgage and purchase at the sale, no right to eject the defendant Volmer from the premises. The plaintiff in this case, standing in the position of a subsequent incumbrancer to the lien of the defendant Volmer’s grantors, which has never been paid, is not entitled to recover in this proceeding. It is not necessary to decide at this time whether a bill to redeem will lie. The cases cited from Indiana and Illinois are not decisive of an interpretation of the mechanic’s lien law of Minnesota. The objections of the plaintiff to the validity of the-proceedings, etc., taken at the trial, are overruled.

Judgment will be entered in favor of the defendants.