
    FIRST SAVINGS & LOAN CO v WARD et
    Ohio Appeals, 9th Dist, Lorain Co
    No 779.
    Decided May 15, 1936
    Webber, Webber & Black, Elyria, for plaintiff.
    D. B. Symons, Elyria, for defendant The West Side Lumber & Coal Co.
    Rudin & Keech, Elyria, for defendant the Kalamazoo Stove Co.
   OPINION

PER CURIAM

When the first mortgage given to the First Savings & Loan Co. was filed of record, the improvement upon the property, by way of construction of the buildings, had been in progress for some time, and was apparent to anyone viewing the premises, and neither said mortgage nor the subsequent mortgage of the First Savings & Loan Co., which was filed when said first mortgage was canceled of record, was in form a construction mortgage under §8321-1, GC, and the disbursements of the money loaned under said mortgage were not made in accordance with said section.

Under such circumstances, mechanics’ liens duly perfected after the filing of such mortgages have priority over such mortgages, and the evidence does not warrant the conclusion that either the Kalamazoo Stove Co. or the West Side Lumber Co. or either of them did or failed to do anything which estops them from enforcing the priority of their respective mechanic’s liens, and the evidence does not warrant the court in reinstating said first mortgage which was cancelled; and that is especially, so if such reinstatement would in any wise prejudice the rights of said Stove Co. or the West Side Lumber & Coal Co,

A decree may be drawn in this court ordering sale and settling priorities the same as in the Court of Common Pleas, making due allowance for the lapse of time since said decree.

’PUNK, PJ, STEVENS and WASHBURN, JJ, concur in judgment.  