
    HAPPEL et v STEWART et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 1294.
    Decided March 4, 1935
    Harry M. Wolfe, Dayton, for plaintiffs.
    Fitzgerald & Ford, Dayton, for defendants.
   OPINION

By THE COURT

The above entitled cause is now being determined on plaintiff’s application for rehearing.

The memoranda attached seeks the view of the court as to waiver of lien provision of 88312 GC and similar provision omitted from §8321-1 GC.

We did not base our conclusion on the waiver provisions of the statute and do not think that the present query is pertinent' to the question involved.

Irrespective of statute, any one has a right to waive their liens in favor of a contemplated mortgage. This was what was done in the instant case, and for .that reason the mortgage lien is prior.

We did not consider the mortgage -as a construction mortgage. Motion for rehearing will be denied.

KUNKLE, PJ, BARNES and HORNBECK, JJ, concur.  