
    Herferth, Sr., v. Nisbet et al.
    (Decided November 10, 1933.)
    
      Mr. Joseph L. Meyer and Mr. Benjamin 8. Sclvwartz, for plaintiff in error.
    
      Messrs. Murphy é Murphy and Messrs. Stevenson & Stevenson, for defendants in error.
   Hamilton, J.

The action below was brought to foreclose mechanics’ liens on the property described in the petition.

The liens were challenged by one of the defendants below, plaintiff in error here, John W. Herferth, Sr. Herferth was the owner of a two and one-half acre tract of ground in Clermont county, and contracted with one Strassel to deed the east half thereof to Strassel, on which Strassel contemplated erecting a dwelling house. The dwelling house was erected. The Nisbet Company furnished material of the value of $553.84, which sum remains unpaid, and it endeavors to enforce a mechanic’s lien on the property.

J. P. Larrick, another lien claimant, furnished the electrical work, and his claim was for the sum of $52, and he seeks foreclosure.

The trial court held the liens good and ordered foreclosure.

It is difficult to apply the mechanic’s lien laws to the facts before the court, for the reason that there are voids in the chain of title and seriously disputed facts concerning the interests of the several parties.

It seems that Herferth either was the owner, or later became the owner, or at the time of the building of the dwelling house had a vendor’s lien on the property. There is some evidence that Strassel was the owner or had some interest therein. Larrick served notice of the lien, and, Strassel being absent from the county, the lien notice was posted on the premises, so that, if Larrick’s claim is proven, and the notice of the lien was filed within sixty days of the furnishing of the material, his lien would be good. The trial court found the lien good on the evidence submitted, and we will not disturb that finding.

Nisbet contracted with Strassel to furnish the lumber, and on examination of the records found the property in the-name of Herferth and served notice on Herferth. The Strassels are not complaining of the lien. Herferth makes the contest. Herferth claims he never delivered the deed to Strassel. There is evidence that he executed and delivered the deed. He claims that, without recording the deed, Strassel returned it to him. Herferth was either the owner or had a vendor’s lien, which would be a prior lien to a mechanic’s lien, since Strassel never paid Herferth anything on the property.

Our conclusion is that the liens are good as against the building, but are not good as against the realty, which was either the property of Herferth as owner or was under a prior vendor’s hen.

This conclusion requires a modification of the trial court’s judgment. The judgment of the Court of Common Pleas will therefore be modified by sustaining the lien as to the building only, and not as to the land on which it is located. The judgment ^as so modified will be affirmed.

Judgment modified and affirmed.

Ross, J., concurs.  