
    Spence v. Etter.
    On the 25th February, 1841, S- and M. (to secure their Mechanic's lien) filed their account for work and labor, and materials, in the Clerk’s Office, as required by the Statute; an abstract of which was entered on the judgment docket. At the April term, 1841, of the Circuit Court, they instituted an action of assumpsit on the account, and obtained judgment against the owner of the land upon which they had erected the building: execution was issued against the specific property, and sale thereof. On the 19th March, 1841, the owner executed a mortgage on the property to a third person — Held that the title acquired under the Sheriff’s sale, was paramount to the mortgage — that the- bringing of an action of assumpsit did not waive the mechanic’s lien: that the-declaration in such action may be in the usual form, and need not refer to the lien t that the execution, on such judgment may issue against the specific property: and that the filing of the account and affidavit, and entering an abstract upon the judgment docket, is notice to, all the world of the lien.
    
      Appeal from the Chancery side of the Hempstead Circuit Court.
    
    Bill' to foreclose a mortgage, by William H. Etter against Chambers Etter, John S'. Spence, surviving partner of the Arm of Spence' and Mathews, Taylor & Hadden, partners, Ephraim Myrick and Grandison D. Koyston, determined in the chancery side of the Hempstead Circuit Court, at the November term, 1846.
    The bill alleged that on the 19th of March, 184-1, Chambers Et-ter executed a mortgage to complainant, upon a tract of land lying-in Hempstead county, to secure the payment of a debt, which was filed for record on the day of its execution- That Chambers Etter was seized in fee of the land so mortgaged', and the mortgage debt was due 1st January, 1842. That the following liens existed upon the lands, and no other within the knowledge of complainant, all of which were subsequent to his mortgage, to wit: A judgment in favor of Ephraim Myrick, of 12th April, 1841,- a judgment in favor of Taylor & Hadden, of 13'th April, 1841; and a judgment in favor of Spence & Mathews, of 16'th April, 1841, all' in the Hempstead Circuit Court. That under executions issued' upon the judgments of Myrick, and Taylor & Hadden, the land had been sold, and Roys-ton became the purchaser; and under an execution issued upon the judgment of Spence & Mathews, it had again been sold, and Spence became the purchaser.
    A copy of the mortgage, transcripts of said judgments, and proceedings under them, were exhibited. The bill prayed a foreclosure of the mortgage, <fcc. A decree pro confesso was taken against all the defendants, except Spence, who answered.
    In his answer, Spence admitted that on the 19th March, 1841, Chambers Etter was the owner of the land in question, subject to a mechanic’s lien in favor of himself and Mathews. Denied any personal knowledge of complainant’s mortgage, but admitted the existence of the judgments, mentioned in the bill,. • The answer alleged that in the summer of the year 1840, Chambers Etter employed respondent and Mathews, since deceased, who were mechanics and house builders, to furnish lumber, materials, ¡fee., and build a house upon the tract of land described in complainant’s mortgage, and that, accordingly, they furnished lumber, materials, &c., and erected a house on said land for said Chambers Etter, their bill, therefor, amounting to $314 67. That they completed the work on the 16th November, 1840, and wishing to avail themselves of the benefit of the mechanic’s lien law, {Rev. Slat. chap. 96,) filed with the Clerk of the Circuit Court of Hempstead county, on the 25th day of Feb-uary, 1841, a just and true account of the amount due them, verified by affidavit, containing a description of the property to be charged with the lien, &c. A copy of the account and affidavit was exhibited. Respondent further alleged 'that die said Clerk, upon the filing thereof, made an abstract of the account upon his judgment docket, &c., a copy of which was exhibited. That respondent and Mathews, wishing to enforce their lien upon said land, commenced an action of assumpsit, in ordinary form, upon the account, against said Chambers Etter, in the Hempstead Circuit Court, and recovered judgment on the 16th April, 1841, for $314 67, with interest and costs. A transcript of the proceedings in the suit was exhibited. That there was no other mechanic’s lien upon the land. That, upon the motion of respondent and his partner, the Court ordered an execution upon said judgment against the property charged with their lien, which was levied by the Sheriff, upon the house erected by them on said land, and two acres around it, which was offered for sale, but failing to bring two-thirds of its appraised value, was not sold. That afterwards, a ven. ex. issued, the property so levied on was sold by the Sheriff; the respondent, Spence, became the purchaser, and took the Sheriff’s deed therefor. Copies of the executions, returns, deeds, &c., were exhibited.
    The cause was heard on bill and exhibits, answer and exhibits, replication and depositions, and the court decreed the mortgage of complainant paramount to the title of Spence, a foreclosure, &c.
    Spence appealed to this court.
    Roystow & Cocke, for appellant.
    Pike & BaldwiN, contra.
    
   Oldham J.

This case presents but one question. By the record it appears that Chambers Etter, being the owner of the land in controversy, employed Spence and Mathews, who were carpenters, to furnish materials, and work upon a house, upon the land. After furnishing the materials and performing the work, and before Etter’s title to the land became incumbered in any respect whatever, and within the time limited by law for that purpose, they filed with the Clerk of Hempstead county, a just and true account of the amount due them, verified by their affidavit; the affidavit containing a correct description of the property, to be charged With their lien. The Clerk filed the account and affidavit in his office, and made an abstract therefrom upon his judgment docket. They then instituted an action of assiunpsit on their account against Chambers Etter, in the Circuit Court of Hempstead county, and at the April term, 1841, obtained judgment thereon. After obtaining judgment, at the same term, upon their motion, execution was ordered by the court, to be issued against the specific property, to be charged by the lien. The lien was filed on the 25th February, 1841.

On the 19th March, 1841, Chambers Etter executed to William H. Etter a deed of mortgage upon the same land, to secure the pay - rnent of the money therein mentioned, which was acknowledged and filed for record on the same day. The question presented to this court, is, whether the mortgage of William H. Etter, or the title acquired under execution upon the judgment of Spence and Mathews, is paramount.

Up to the time of the bringing of their action of assumpsit, the steps taken by Spence and Mathews for the purpose of enforcing their lien were literally in compliance with the act of the legislature upon the subject. See Rev. St. ch. 96, and no exceptions are taken to the proceedings up to that stage. But it is insisted by the appel-lee that by bringing an action of assumpsit without referring to the lien in the declaration, they did not pursue, but abandoned the lien. The 5th sec. of the act above referred to, provides that “whenever any person shall wish to proceed against any property, upon which he shall have a lien by virtue of this act, he may commence his suit in the ordinary form, and shall have judgment against the original debtor for the amount that may be found due him, and shall have the liberty of taking his execution against such proportional part of the property charged with such lien, as his demand bears to the whole amount of the liens that are charged upon such property, &c.” The action of assumpsit was the appropriate action in the case. The ordinary form was adopted, and in that respect the requisition of the Statute was fully complied with. A reference in the declaration we deem not at all essential, and its omission cannot be construed into a waiver of the legal right of the creditor. Nor is the objection that the. court ordered execution to issue against the specific property charged with the lien without notice, tenable. The remedy given by the Statute is two-fold: “first, the party may bring an ordinary suit against the debtor, and after judgment have execution against the property charged, and then against his other effects; or, secondly, he may proceed against the original debtor, and against every other person owning or claiming possession of the property, by fiere facias” Brown v. Morrison & Sullivan, 5 Ark. Rep. 217.

The first mode was adopted in the present case. The filing of the account and affidavit in the Clerk’s office, and an abstract thereof being entered upon the judgment docket, operated as constructive notice to the debtor of the claim of the creditor to a lien upon the specific property. The lien, however, could not have been enforced without additional notice by summons, in an ordinary suit at law, or by scire facias. This notice the defendant had, by which he might have appeared in court and resisted the demand, or shown irregularity in filing and establishing the lien, and resisted the motion for execution against the property charged.

When the defendant did not own or possess the property at the time the contract was made for such work, labor, or materials, &c., execution cannot issue against the property charged with such lien, unless a scire facias shall have first issued and been served upon the owner or possessor of such property, requiring him to appear, and show cause why judgment should not be entered up, and execution had against such property, Rev. St. ch. 96, sec. 6. It is admitted by the record that Chambers Etter did own the property at the time of making the contract, and that the right of William H. Etter accrued after the making of the contract, furnishing the materials, and performance of the work. At the time the account and affidavit were filed for the purpose of establishing the lien, the property was free of all incumbrance, either by judgment, mortgage, or otherwise. The title acquired by Wm. H. Etter, under the mortgage to him, was subject to existing incumbrances. The mechanic’s lien of Spence and Mathews was then of record. The records of the clerk’s office were subject to his examination; it is to be presumed that he examined diem, to see whether the property was incumbered, and if he did not, it was his own fault. The filing the account and affidavit, and entering an abstract upon the judgment docket, operated as legal notice to all persons; and rights or title to the property subsequently acquired from Chambers Etter, must be held subject to the prior lien. The Circuit Court in Chancery erred in decreeing the' mortgage of William H. Etter, paramount to the title acquired under the execution sale in favor of Spence and Mathews. Decree reversed.  