
    David H. Mitchell v. Alfred S. Penfield, et al.
    
    1. Mechanic’s Lien; Date of contract; Drror ma/y he corrected. "Where a written statement filed with the clerk of the district court under section 633 of the civil code; in order to preserve a mechanic’s lien, contained a statement that the contract was made “ on or about the 30th day of June, 1869,” such statement, where no one has been misled by it, will not prevent the party claiming the mechanic’s lien from showing that the contract was in fact made about the 22d of said June, and prior to the 28th of said month.
    2. -Lien attaches at date of contract. Under section 630 of the civil code (General Statutes, 755,) a mechanic’s lien dates from the time of making the contract.
    
      Error from Lemervworth Dist/riet Oou/rt.
    
    Penfield was tbe owner of a certain lot in Leavenworth, on which he erected a warehouse in 1869. He made a contract with Thomas Outts to furnish lumber to be used in said warehouse; and in January, 1870, (and within six months after the lumber was furnished,) Outts made and filed the “ statement ” required by § 633 of the code, in which he stated that •his contract with Penfield to furnish lumber “ was made on or about the 30th day of June, 1869.” On the 28th of June, 1869, Penfield executed a mortgage to and in favor of Mitehell on said lot, which mortgage was recorded on that day. Outts died; David J. Brewer and George A. Eddy were his executors. Mitchell brought his action against Penfield to foreclose said mortgage, and Brewer and Eddy, as executors of Outts, were joined as defendants. The executors claimed that the lien of their testator for lumber was prior to that of Mitehell under the mortgage; that the contract between Outts and Penfield was in fact made before the 28th of June, 1869, and on or about the 22d of said month. The district court found that the claim of Brewer and Eddy, as executors,. etc., amounted to $972.22, and was a. first lien on the premises; and that the mortgage debt due Mitehell amounted to $1,912.78, and was a second lien on said premises. Judgment was given accordingly, and Mitehell brings the case here on error.
    
      
      J. L. Pendery, for plaintiff in error:
    1. We claim the court erred, First, Because it was not disputed, nor even made a controversy, that the plaintiff had in good faith loaned defendant Penfield the amount he claimed in his note, and that the mortgage was upon record the day of its date. Second, Because it is not and was not a disputed point at the trial below, that Cutts did not deliver and part with the lumber in question until after plaintiff’s -mortgage was of record.
    2. The only question of dispute is, when did Cutts make a contract, (if any was made at all,) or when was the sale made of the lumber by Cutts in his life-time to Penfield?
    The affidavit of Cutts offered in evidence and attached to Brewer and Eddy’s answer in said cause, (the same made by Cutts in his life-time,) shows that it was on or about the 30th of Jume, 1869. Penfield says it was on or about the 20th of June, 1869.
    The mortgagee’s lien attached at the time of its becoming of record, and was notice to the world, and thereby became a prior lien to that of defendants for the lumber furnished subsequent thereto. 11 Allen, 152; 1 Oregon, 220; 13 Wis., 466; 4 Minn., 20; 1 Ash., 207; 5 Binney, 585;. 4 E. D. Smith, 721; 1 McCarter, (N. J.,) 189.
    3. The testimony shows that no lumber was delivered by Cutts under his contract until the 30th day of June. Cutts took find can claim only what interest Penfield had in said property at the time said material was delivered. Liens which have attached before materials are delivered have precedence over mechanic’s liens founded thereon.
    
      Hurd ds Bwnie, for Brewer and Eddy:
    Sec. 630 of the code provides that any person who shall, under contract with the owner of any tract or piece of land, furnish materials or perform labor, etc., on such land, shall home a Men from the ti/me of malM/ng such contract upon the whole tract or piece of land, etc., for the amount due to him for such. Tabor or materials. Tbe evidence offered by tbe defendants in error, showed tbe contract was made on tbe 20th of June, 1869.
    Tbe only question in this case is one of fact; and tbe findings of tbe court below on this fact were supported by sufficient evidence, and are in conformity to law, and like tbe verdict of a jury, cannot be reversed in this court, unless clearly against evidence and manifestly without evidence.
   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.  