
    Troth and Another v. Hunt.
    Tlie assignee of a second mortgage filed a bill of foreclosure, making B., the assignee of the first mortgage, one of the defendants. B. answered, praying for a- sale of the mortgaged premises and for a priority of payment. Held, that, in case of a sale, B. should be first paid.
    Where a mechanic’s lien accrues on premises previously mortgaged, the mortgage must be first satisfied.
    ERROR to the Dearborn Circuit Court.
   Blackford, J.

H. and S. F. Troth filed a bill in chancery,

in April, 1841, against Close and others. The bill states, 1. That Close and wife, two of the defendants, on the 30th of March, 1840, executed to one Brower a mortgage on two lots of ground in Lawrenceburgh, to secure the payment of certain notes, and that Brower had assigned the notes, and delivered the mortgage, to the complainants; 2. That previously to the execution of said mortgage, viz., on the 15th of November, 1839, Close and wife executed a mortgage to one Gregg on the said lots, to secure the payment of certain notes; 3. That Hunt claimed a mechanic’s lien on the lots (the date of the lien is not stated); 4. That there were on the lots various other incumbrances (which are described in the bill) of a later date than the above-mentioned mortgages. The bill prays that an account be taken of what is due on the incumbrances, and that on default of payment within a certain time, the lots be sold, &c.

As to all the defendants except Hunt, the bill was taken as confessed.

Hunt, in his answer, admits the execution of the mortgage to Brower; he claims a mechanic’s lien on the lots for materials furnished to Close for a house, saying that Close gave him a note dated the 1st of September, 1840, for the price of the materials; he states that he is the assignee of the notes and mortgage mentioned in the bill, which were given by Close and wife to Gregg; and he prays that the premises be sold, and that he be first paid.

The cause was submitted to the Court .on the bill and Hunts answer.

There was a final decree for the complainants, — giving, however, in case of a sale of the lots, a preference in payment to the mortgage held by Hunt and the mechanic’s lien claimed by him, over the mortgage held by the complainants.

P. L. Spooner and J. Ryman, for the plaintiffs.

J. T. Brown and E. Dumont, for the defendant.

The complainants are the plaintiffs in error.

The mortgage assigned to Hint being the oldest lien, was entitled, in case of a sale, to be first paid. Hunt says in his answer that Close gave him a note, dated the 1st of September, 1840, for the price of the materials for which the mechanic’s lien is claimed; and that is all the information we have as to the date of that lien. The mortgage held by the complainants is dated the 30th of March, 1840. The mechanic’s lien, therefore (supposing there was one, and that it could be enforced), must be considered to be younger than the mortgage held by the complainants. That being so, the last-named mortgage has a priority over the-mechanic’s lien. Close et al. v. Hunt (ante, 254). Whether the mechanic’s lien is well founded, or can be enforced, we give no opinion.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  