Suit was brought by the West End Town Company against Dowdell and wife to recover on three promissory notes and foreclose a builder’s and mechanic’s lien for their security. There were five notes given by Dowdells for the indebtedness, all secured by the same lien and maturing on the first of November, 1894, 1895, 1896, 1897 and 1898 respectively.
Good law ✅— No negative treatment on recordhow we know
Decided 1905-03-20
How this case has been cited
Cited by 15 later decisions — most recently April 1945
15 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
We are of the opinion that the judgment of the Court of Civil Appeals which awarded Mrs. A- M. Perry a priority of lien is correct, and that therefore the application for tiie writ of error ought to be refused. We base our opinion, however, upon the ground, that the West End Town Company, while retaining the notes now held by the applicants for the writ of error, guaranteed the payment of the notes assigned by it to Mrs. Perry. We think that guarantee inconsistent with the retention of a co-ordinate lien for the payment of the notes retained by the company and that it had the effect to waive any existing lien in the company’s favor upon the same property. It is not necessary for us to decide, in this case, the question whether, when the holder of two or more promissory notes, which are executed at the same time and are secured by a lien upon real estate, assigns one of them and retains the other or others, he thereby gives to the assignee a priority of lien to secure the note so assigned. We do not pass upon that question.
