
    Sarah H. Bean and Husband vs. Robert Cochran.
    August 11, 1877.
    Action for Removal of Building from Land Subject to Mortgage — Evidence of Lien must be Shown. — To maintain an action under Laws 1869, e. 64, which forbids any person to remove any building situated upon any real estate on which any mortgage or mechanic’s lien exists, to the prejudice of the holder of the mortgage or lien, etc., the actual subsistence of the alleged mechanic’s lien, or of the lien of the alleged mortgage, upon the real estate described must be made to appear.
    Appeal by defendant from a judgment of tbe district court of Wabasha county, Mitchell, J., presiding, to restore a building upon certain described premises, or pay the principal and interest due upon a certain mortgage therein described.
    
      S. L. Campbell and Lloyd, Barber, for appellants.
    
      Simpson é Wilson, for respondent.
   Berry, J.

This action is brought under Laws 1809, c. 64, which forbids any person to remove any building situate upon any real estate on which “any mortgage or mechanic’s lien exists” to the prejudice of the holder of the mortgage or lien, etc. To maintain the action, the actual subsistence of the alleged mechanic’s lien, or of the lien of the alleged mortgage, upon the real estate described must be made to appear. This action was tried by the court below, by which a case was settled containing “all the evidence offered upon the trial.” The settled case comes up here as part of the judgment roll. Although the subsistence of the lien of the alleged mortgage upon the real estate described in the complaint, as such subsistence is alleged in the complaint, is put in issue by the answer and is found by the court, the case contains no evidence whatever tending to sustain the finding, because it contains no evidence that the mortgagor ever had any right or title in, or to, the alleged mortgaged premises.

The judgment must, therefore, be reversed.  