This is a companion case to that of A. W. Kurz v. D. Pappas, and others, recently considered by us, 146 So. 100,147 So. 271. Both cases were argued together. Both are appeals from final decrees. Each is controlled by the principles of law and equity heretofore laid down in Sandquist Snow, Inc. v. Kellogg, 101 Fla. 568, 133 Sou. Rep. 65, 101 Fla. 579, 136 Sou. Rep. 235.
In the instant case the right to a priority in the property involved, as between appellant, a mortgage assignee, and the owner of the fee, one Patchen, a subsequent grantee under the purchaser at a mechanic's lien foreclosure, was litigated. The master held, and the Chancellor sustained his ruling, that under the evidence submitted, the adjudicated lien for labor and materials under which appellee claimed, accrued prior to the date of the mortgage. Foreclosure of the mortgage as against the mechanic's lien was denied and the bill of complaint was ordered dismissed without prejudice to any other right of the mortgage holder.
The ruling should be affirmed on the authority of the companion case to this, decided at the present term.
Affirmed. *Page 877
WHITFIELD, P.J. AND TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., concurs in the opinion and judgment.
Filed under Rule 21-A.
ON REHEARING. Opinion filed February 23, 1933.