
    *Henry W. Simons v. Charles W. Pierce and others.
    The priority of lien of a chattel mortgage upon a frame building, subsequently removed by the mortgagor to and upon other lands, is not defeated or affected by a subsequent mortgage upon such other lands, given by the same mortgagor to a mortgagee having full knowledge of the prior chattel mortgage.
    Error to the court of common pleas of Ashtabula county. Reserved in the district court.
    The defendants in error filed their petition in the common pleas, in the ordinary form, to foreclose a mortgage upon certain described real estate, “ together with' all fixtures and improvements of whatever nature, which now are or hereafter may be placed upon said land,” given December 15, 1860, by Joseph G-. Simons and wife, defendants below, to secure a note executed by said Joseph G-, Simons to Alanson Slater. And the latter assigned to the defendants in error.
    Joseph G-. Simons and wife failed to answer or demur to the petition.
    
      Henry W. Simons, the plaintiff in error,
    came into court ancb obtained leave to be a defendant, and filed an answer to the petition. The anwer states:
    
      “ 1. That on the 22d day of August, a. d. 1860, the defendant, Joseph G. Simons was indebted to this defendant in the sum of one-hundred sixty-two and 42-100 dollars, on a note and book-account, and for the furnishing of lumber and paying for labor for the erection and construction of the shop or office, being the building now-standing and being upon said premises described in the petition of the plaintiffs. That said building was then standing upon lands in the possession of the said Henry W. Simons, about two miles-east of the present location.
    “ 2. The said Joseph G. Simons desiring to remove said building to the land upon which it now stands, and which land was then leased by the said Joseph G. Simons for a then short time, to wit, on the 22d day of August, A. D. 1860, in order and for the purpose of securing to the said Henry W. Simons, *the payment of said sum of one hundred sixty-two and 42-100 dollars in one year from said 22d day of August, a. d. 1860, with interest thereon, executed and delivered to the said Henry W. Simons, a chattel mortgage of said shop or building, whereby the said Joseph G. Simons bargained and sold to the said Henry W. Simons, said shop or building, and which chattel mortgage had a condition thereunder, written, to the effect that, if the said Joseph G. Simons shall well and truly pay to the said Henry W. Simons, the said sum of $162.42,. in one year from the date thereof, with the interest, then the said conveyance was to be null and void, otherwise to remain in full force and virtue in law. Which chattel mortgage, with the filings and indorsements thereon, is herewith filed, marked Exhibit A.
    
      “ 3. On said 22d day of August, 1860, the defendant deposited' said chattel mortgage with the clerk of'the township of Williams-field, in said county of Ashtabula, where the said Joseph G. Simonsthen and still resides, and where said building then was and still is.
    “ 4. The clei’k of said township of Williamsfiold, on said 22d day of August, 1860, received said chattel mortgage, and indorsed thereon the time of receiving it, and deposited the same in his office, where-the same has ever since remained, up to the time of the commencement of this action.
    “ 5. Afterward, to wit, on the 18th day of August, A. d. 1861, the said sum of ¡8162.42, with the interest thereon remaining wholly ■due and unpaid, this defendant refiled said chattel mortgage, in the office of the clerk of said township of Williamsfield, where the said Joseph G. Simons then resided, with a statement exhibiting the •interest of this defendant in said building, on said 18th day of ■August, 1861, claimed by virtue of said mortgage; which state.ment is appended to and is a part of said Exhibit A.
    “ 6. After the execution and delivery of said chattel mortgage 'by the said Joseph G. Simons as aforesaid, to this defendant; the ■said Joseph G. Simons removed said building on to the land described in said petition, and afterward purchased said land, and .acquired the legal title thereof.
    “ 7. At the time of the execution of the mortgage, mentioned -*in said petition, to said Alanson Slater, he, the said Alanson ■■Slater, had full knowledge of the existence of said chattel mortgage, and of the rights of this defendant.
    “8. No part of said sum of $162.42 has been paid by the said Joseph G. Simons, and the same now remains, with the interest thereon from the 22d day of August, a. d. 1860, wholly due and .unpaid to the defendant.
    “ 9. This defendant therefore asks that the said building maybe sold, and the proceeds of such sale be applied in payment of bis .aforesaid claim and demand against the said Joseph G. Simons, and for such other and further relief as equity may require.”
    To this answer the plaintiffs below demurred, on the grounds ■that the facts therein stated, 1st, do not entitle the said Henry W. ■Simons to the relief asked by him, or to any relief; and 2d, do not ■show that the plaintiffs below are not entitled to the relief prayed •for by them, or in any way interfere therewith.”
    The common pleas sustained the demurrer, and found the amount duo the plaintiffs below, under their mortgage, and that, to secure the payment thereof, they had a valid “ lien upon the lands and Buildings and fixtures in the petition mentioned,” and ordered the sale of the land, etc., to pay the debt.
    To this order and judgment Henry W. Simons excepted, and filed his petition in error in the district court to reverse the same, on the ground that the common pleas erred in sustaining the demurrer to his answer, and in finding the equity of the case with •the plaintiffs below.
    The case was reserved in the district court for decision here.
    
      
      Lee Kellogg, for plaintiff in error. -
    
      Woodbury, Wordbury & Buggies, for defendants in error.
   By the Court.

The judgment of the common pleas must be reversed. That court should have overruled the demurrer to the answer. The cause is remanded for further proceedings.  