
    No. 308
    KANGESSER v. KRUSCH et
    No. 19615.
    Supreme Court
    On motion to certify.
    Dock. Feb. 5, 1926;
    4 Abs. 112.
    997. REAL ESTATE — Under the Torrens Act of Ohio, does a mortgage recorded according to the provisions of said Act, have priority over Mechanics’ Liens subsequently recorded, even though labor and material were furnished by the lien claimants prior to the recording of the mortgage?
    Attorneys — N. B. Howells and C. A. Riemensehneider, for Kangesser and the Cranwood Co.; Scott & Bissell, for Krusch et; all of Cleveland'.
   Harry A. Kangesser brought this action originally in the Cuyahoga Common Pleas to foreclose a mortgage and marshal liens; and thereby the question of priority of various liens arose. The property in question had been Torrenized before any of the liens arose.

It appears that the Standard Land Co. held legal title to 100 acres in Garfield Heights Village. The Cranwood Land Co. purchased this property under land contract. A sub-lot of this property was then sold to one Melevin by land contract.

On August 27, 1913, the Standard Land Co. gave a deed to- Melevin which was filed for record with two mortgages; one to the Cranwood Co. and the other to Kangesser; and all were entered on the Torrens Certificate of Title of said property.

On October 2, 1923, the A. Teachout Co. filed a lien against the property and on October 25, 1923, one Charles Bentley filed a mortgage for record. On November 9, 1923, The Barriball Brothers Co. filed with the Recorder an affidavit to obtain a mechanic’s lien and on December 20, 1923 Melevin transferred the property to Emmanuel Krusch, which deed was duly recorded on said date and noted on the Torrens Certificate of Title.

The Court of Appeals affirmed the Cuyahoga Common Pleas in finding the liens filed by the A. Teachout Co. and the Barriball Co. to have priority over the mortgages.

Kangesser takes the case to the Supreme Court on motion to certify and contends:

1. That the court erred in holding that under the Ohio Torrens Act, a mortgage given for value and recorded in accordance with the provisions of the Torrens Act is subsequent in priority to mechanic’s liens recorded after the mortgage where material was furnished and labor was performed prior to the recording of the mortgage.

2. That the court erred in holding that the plaintiff was the owner of the premises upon which he held a mortgage, as there is no' evidence to sustain such holding.  