Stites v. Wiedner.

number one was offered for sale, without reference to the interest of Stites in lot number two, and was sold for $165.

Harmon & Durrell, for plaintiff in error:

Equity may relieve against a mistake in a sheriff's deed as well as any other. Crosby's Heirs v. Wickliffe, 12 B. Mon. 202; Walford v. Phelps, 2 J. J. Marsh, 31.

The actual proceedings of the sheriff may be shown by parol, to rebut the recitals of his deed. Lessee of Longworth v. U. S. Bank, 6 Ohio, 536.

Error certainly will not lie against a sheriff's deed, and it is that alone that we complain of; that alone passed the title. The only remedy is by a direct proceeding in equity to avoid or correct it, as the case may be.

We claim, in short, that if the sheriff, by inadvertence or mistake, included lot number two in his deed to Fortman, when it was not sold, that mistake entitles plaintiffs to relief in equity. If he included it intentionally, the act being void because without consideration or authority, plaintiffs are entitled to relief, because they are in possession, and the deed puts a cloud upon their title.

Plaintiffs are seeking equity. Defendants are seeking to get something for nothing.

Joseph McDougal, for defendants in error.

MCILVAINE, C. J. If the testimony, admitted by the court below, was properly before the court, there can be no doubt that the finding by the district court upon which the petition was dismissed was contrary to the evidence. The controlling question therefore is, was it competent to show by parol testimony that lot number two was not appraised or offered for sale in the proceeding to foreclose set forth in the record? But before looking into the parol proof, how does the record evidence stand? That the property was appraised and sold by the acre is clear. The successful bid was $165 per acre; the gross sum paid was $4,324.65; the number of acres in lot one was 26.21, which, multiplied

Stites v. Wiedner.

by $165, give the exact product of $4,324.65. It follows from this calculation that if lot two, separated from lot one by a street and containing 29.25 acres, was also sold, there was not any thing paid for it. That lot two was not appurtenant to lot one is clear, and that the value of the mortgagor's interest therein was included in the appraised value of lot one, or in the bid of $165 per acre, for which lot one was sold, is not affirmed by any thing appearing in the record, and that it would have been irregular to have so included it, leads us fairly to the conclusion that neither the sheriff who sold, nor the purchaser under whom the defendants claim, could have intended or understood that lot two was embraced in the sale. Further than this, the sheriff reports that he had appraised and advertised "the within described lot or parcel of land"-" containing 26.21 acres." True, he adds to the report of the sale of lot one, “also all his (Stites) interest, present and prospective, in lot two of said plat or subdivision." That this addition was made by mistake is scarcely susceptible of a doubt from the face of the record, and is made entirely clear by the parol testimony, that lot two, or any interest therein, was not appraised, and that in point of fact lot one and that only was offered for sale and struck off at $165 per acre.

We can see no objection to the admission of parol testimony to prove such mistake. And it being shown that lot number two was not sold, nor was any consideration paid or intended to be paid therefor, the subsequent confirmation of the report and deed in pursuance thereof were not effectual in equity to pass an indefeasible title to the grantee.

Of course, this decision is not intended to depart from the well-established doctrine that the title of a purchaser at a judicial sale who has paid a consideration for his purchase can not be attacked collaterally for irregularities.

Judgment of district court reversed, and decree for plaintiffs.

Rutherfoord & Co. v. Railroad Co.

JOHN W. RUTHERFOORD & Co. v. THE CINCINNATI AND PORTSMOUTH RAILROAD COMPANY.

1. Section 1 of the act of 1877 (74 Ohio L. 168), which authorizes a mechanic's lien on "any house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure," and on the interest of the owner of the same, "in the lot of land on which the same shall stand or be removed to," for labor performed or machinery or materials furnished by the contractor, "for erecting, altering, repairing, or removing" the same, does not authorize such a lien upon a railroad.

2. Whether this statute provides for a lien on the bridges which form part of a railroad is not decided.

ERROR to the District Court of Hamilton county.

The courts below sustained a demurrer to plaintiffs' second cause of action. It seeks to enforce a mechanic's lien, in favor of the plaintiffs as railroad contractors, against defendant, an Ohio railroad corporation, for a balance due for constructing eleven miles of its railroad, from Columbia station, Hamilton county, to Mount Carmel, Clermont county, Ohio.

The defendant's road, as provided for in its charter, extends from said first named station, through Clermont, Brown, and Adams county, to Portsmouth, Scioto county. Of this line, only the western end has been completed under plaintiffs' contract, while some work has been done further east, but all work is now suspended on the uncompleted part.

Plaintiffs claim a lien on the railroad and right of way on entire line of said railroad from Columbia to Portsmouth, including not only the road itself and the defendant's interest in the land on which it is located, but also on all its property, income, and franchises. The land on which this lien is sought, is described as "a strip of land" from twenty to one hundred feet wide, extending from Columbia to Portsmouth, constituting defendant's right

Rutherfoord & Co. v. Railroad Co.

of way. From the former point to Georgetown, the route is specifically described as passing through sections and surveys designated; but from thence to Portsmouth, it is generally described as passing through the counties abovenamed.

It is stated that the work was done under a contract, which need not be here set out, and that there is a balance due, for which this lien is sought.

The affidavit filed with the recorder states, that it is made to secure a building lien on said premises, lands, rights of way, structures, railroad bridges, and all parts of said railroad, etc.

The contract as modified, and under which the work was done, included graduation, masonry, bridges, culverts, trestles, and such other work as would be required to complete the road ready for the rolling-stock, at agreed prices for the different classes of work, to be paid for upon estimates and measurements of the defendant's engineer.

Sayler & Sayler; Hoadly, Johnson & Colston, and Jordan, Jordan & Williams, for plaintiffs in error:

A railroad built by a private corporation is such a structure as may be subjected to a lien under our mechanics' lien law. 11 Wis. 119-122; Constitution, art. 13, § 3; Phillips on Mechanics' Liens, 260, § 182; 11 Wis. 215; 26 Conn. 573; 37 N. H. 420; 10 Ohio St. 372; 27 Ark. 571; 39 Ill. 620; 44 Cal. 18.

Mallon & Coffey and Stallo, Kittredge & Shoemaker, for defendant in error:

Under our mechanics' lien act, the lien involved in this case could not be taken. See Brady v. Anderson, 24 Ill. 110; Coddington v. Dry Dock Co., 2 Vroom (N. J.) 477; Phillips on Mechanics' Liens, § 15; Choteau v. Thompson, 2 Ohio St. 128; 55 E. C. L. (8 Q. B.) 452; 26 Ohio St. 47; 12 Cal. 452; 14 Bush (Ky.), 425; 3 Bush, 650.

It is not contended that the mechanics' lien law in terms

Rutherfoord & Co. v. Railroad Co.

embraces railroad structures, etc.; but, it is said that its language is broad enough to include them.

We can not believe that it was the intention of the legislature to give such a lien, and we can not, by construction,. decide that the mechanics' lien law embraces railroad structures, when such a construction would not only be contrary to, but ruinous to the public interest.

In further illustration of the rules of construction which have been applied to mechanics' lien laws, see McPheeters v. Merrimac Bridge Co., 28 Mo. 467; Dunn v. North Missouri Railroad Co., 24 Mo. 493; Abercrombie v. Ely et al., 60 Mo. 23; L. C. Mil. R. R. Co. v. Vanderpool, 11 Wis. 119; Esterly's Appeal, 54 Pa. St. 192; Tuesdale v. Gay, 13 Gray, 311; Bank of Charlestown v. Curtiss, 18 Conn. 342; N. E. Car and Spring Co. v. B. & O. R. R. Co., 11 Md. 81; Leonard v. City of Brooklyn, 71 N. Y. 498; Rothguber v. Dupuy, 64 Ill. 452; Smith v. Kennedy, 89 Ill. 485; Coddington v. Dry Dock Co., 2 Vroom, 477.

JOHNSON, J. The statute under which this claim is made, is the act of 1877 (74 Ohio L. 168). Section 1, which is relied on, reads: "That any person, who shall perform labor, or furnish machinery or materials for constructing, altering, or repairing any boat, vessel, or other water-craft, or for erecting, altering, repairing, or removing any house, mill, manufactory, or other building, fixture, bridge, or other structure, by virtue of a contract with the owner or owners, his or their authorized agents, shall have a lien to secure the payment of the same, upon such boat, vessel, or other water-craft, or upon such house, mill, manufactory, or other building or appurtenance, fixture, bridge, or other structure, and the interest of said owner or owners in the lot of land on which the same shall stand or be removed to."

The second section provides for the mode of perfecting this lien, by filing with "the recorder of the county where said labor was performed, or machinery or materials were furnished," an affidavit to an itemized account, and copy VOL. XXXV-36