Preston v. Sonora Lodge

Wallace, J., delivered the opinion of the Court:

The questions made upon the appeal involve, to some extent, the construction of the Act of March 30, 1868, to secure the liens of mechanics and others.

The respondents (Bradford, who is a lumber merchant, and the others, laborers) respectively claim liens upon the Knox & Boyle quartz mine, in Tuolumne County, for materials furnished and work done about the carrying on and repair of the mine, and they, respectively, filed their claims for record within the thirty days prescribed by the fifth section of the Act. The Court below found, as a fact, that Bradford commenced furnishing lumber at seven o’clock [117]A. M., on January 23, 1868 (which would be some two hours and- a half before the appellant’s mortgage was filed for record, as will be seen hereafter), and that the respondents, Logan, Smith, McClury and Oonefy (the latter two being assignors of the respondent, Preston), respectively, commenced labor on the mine at distinct periods of time from the first to the thirteenth of the same month, but that the-other respondents, Scott, Zelian, Ford and Fitzgerald, did not commence work for more than one month after the 23d day of January—Scott, the earliest of them, only beginning on February 24, 1868. On the 23d of January, 1868, at 9:30 A. M., a mortgage upon this mining property, bearing date of the day before, was duly recorded in favor of the appellant, and the principal controversy here concerns the-rank or position of its lien with reference to the liens asserted by the respondents. It will be observed that the statute, ■ having given a lien to Bradford, as a material-man, at the date and upon the fact of his furnishing materials used in-the repair of the property, preserved, of its own force, that lien for his benefit, from the time of such furnishing until thirty days after the completion of the repairs, upon the' lapse of which time, however, his lien would be lost, unless he, in the meantime, had filed with the Recorder the claim provided for in the fifth section; and the respective liens of the other respondents, the laborers upon the mine, are acquired and preserved for the same time, and may become lost, in the same manner; these liens arising in favor of each upon the fact of labor actually commenced, preserved by the statute during the continuance of the performance, and for thirty days after its cessation, and then lost, unless within that time a claim shall have been filed.

These provisions of the law having thus fixed the rights of the statutory lien-holders inter sese, the Act further provides, in substance, that such liens shall be preferred to that of any mortgage subsequently attaching upon the premises or sub-, sequentiy recorded. It contains, however, no provision authorizing, under any circumstances, the displacement or disturbance of a mortgage-lien once attached, nor its postponement to any lien arising at a subsequent time; nor does