
    No. 578
    WILSON v. DEWEY et
    No. 19849.
    Supreme Cuort
    On motion to certify.
    Dock. May 28, 1926.
    953a. PRIORITY — Is a mortgage given to secure the unpaid balance of the purchase price of' a piece of real estate filed prior to a mechanic’s lien subsequently placed against the property prior to said mechanic’s lien or does the mechanic’s lien have precedence over the mortgage in the distribution of the proceeds from sale under foreclosure.
    Attorneys — T. M. Potter, New Lexington, for Pltf.; T. B. Williams, New Lexington, for Deft.
   Curtis M. Wilson brought this action originally in the Perry Common Pleas against H. A. Dewey, the Crooksville Mining Company and George W. Spring for foreclosure of a purchase money mortgage on certain coal land which he had sold to Dewey.

In August 1920 Wilson agreed by written contract to sell certain coal line which he owned, and upon which a mine was being operated, to H; A. Dewey; and pursuant thereto in September 1920 Wilson conveyed by deed said property to Dewey, taking a mortgage on the property to secure the unpaid balance of the purchase price. Immediately thereafter Dewey caused the Crooksville Mining Company to be incorporated and thereupon conveyed said land to the Company. The deeds delivered in these transactions were recorded on November 29, 1920, and the mortgage from Dewey to Wilson was filed for record on December 17, 1920. ^Thereafter Spring sold % quantity of lumber to the Company to be used in constructing a tipple and upon the failure of the company to pay this material Spring caused a mechanic’s lien to be filed against the property.

Upon the Company’s failure to pay the balance of the purchase price Wilson brought an action for foreclosure and the amount realized from the sale of the property being insufficient to pay both the unpaid balance of the purchase price and the mechanic’s lien the question arose as to which lien had priority. The judgment of the Common Pleas in decreeing the mechanic’s lien to be prior to the lien of Wilson was affirmed by the Court of Appeals.

Wilson in the Supreme Court contends:

1. That the mechanic’s lien applied only to the equity of redemption in the property which belonged to the Mining Company, because it is claimed, Spring was merely a creditor.

2. That the mortgage had priority over the mechanic’s lien because it was filed prior to said lien.

3. That a vendor’s lien is prior to any liens subsequently filed.  