
    No. 278
    BAUMGARDNER v. MALLOY
    Ohio Court of Appeals, Lucas County
    No. 82405.
    March 19, 1923
    This opinion -has not been published except in Abstract.
    PRIORITIES — (1) Between holder of land contract and holder of mechanic leni — (2) Priority of mechanic lien to claims of general creditors.
    Attorneys — Denman, .Kirkbride, Wilson & McCabe, for Baumgardner; Smith, etc., for Malloy.
   KINKADE, J.

Epitomized Opinion

This is an action to determine priorities beetween various liens. .Malloy purchased property from a grantor for $3,500. The property was sold under a land contract, title remaining in the grantor until the entire purchase price was paid. As there was an $800 mortgage on the property at the time, the grantor agreed to pay that mortgage out of the payments made by the' grantee. The grantee made certain improvements upon the property, constructing a store room thereon, with a living apartment above. Being in need of more money to carry on his business, he secured a loan of $2800 from a loan association. As- the title to the real estate still remained in the vendor, the mortgage -was signed by both the vendor and the vendee. Being-unable to meet his obligations, two mechanic liens were filed against the property of the vendee. Suits were then commenced by various creditors, and a receiver appointed. In the meanwhile the land contract was canceled. An appeal was later prosecuted by the various lien holders. Held:

1. That the liens for labor and material only covered the equitable interest of the vendee in the property.

2. That the vendor was entitled to recover as between herself and the other creditors of the vendee, the sum of $5450, together with interest, and that the parties entitled to mechanic liens were entitled to any sums over that amount.

3. That an ysurplus over and above the claim of the vendor and the holders of mechanics’ liens should be distributed among the general creditors.  