On Petition Eor Rehearing by
Judge Hobson.Section 2463, Ky. St. (Russell’s St. § 2383), provides: “A person who performs labor or furnishes materials, * * * for the improvement, in any manner, of real estate by contract with, or by the written consent 'of, the owner, contractor, subcontractor, architect or authorized agent, shall have a lien thereon, and upon the land upon which said improvements shall have been made or on any interest such owner has in the same to secure the amount thereof with costs; and said lien on the land or improvements shall be superior to any mortgage or incumbrance created subsequent to the beginning of the labor or the furnishing of the material; and said lien, if asserted as hereinafter provided, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials: Provided, that such lien shall not take precedence of a»mortgage or other contract, lien or bona fide conveyance for value without notice, duly recorded or lodged for record according to law, unless the person claiming such prior lien shall, before the recording of such mortgage or other contract lien or conveyance, have filed in the clerk’s office of the county court of the county wherein he shall have performed labor or furnished material, or shall expect to perform labor or furnish materials, as aforesaid, a statement showing that he has performed or furnished, or that he expects to perform or furnish, such labor ,or materials, and the amount *94in full thereof, and. his lien shall not, as against the holder of said mortgage or other contract lien or conveyance, exceed the amount of the lien claimed, or expected to be claimed, as set forth in such statement. ’ ’
It will be observed that by the statute the person who makes the improvement is given a superior lien on the land, which takes effect from the time of the commencement of the labor or the furnishing of the materials. But it is provided that this lien shall not take precedence of a mortgage for value without notice duly recorded or lodged for record unless the person furnishing the labor or material has first filed his statement in the county clerk’s office as provided by the statute. It will thus he seen that the mechanic has the superior lien, though he fails to' file any statement in the county clerk’s office, except as to a mortgage for value without notice regularly lodged for record. Under the statute, Miller had a superior lien, unless Dersch’s mortgage was for value and without notice. It was incumheut on Dersch, under the statute, to show that he was a bona fide purchaser without notice, 'in order for him to have priority over Miller. This he did not do. His pleadings.are entirely silent on this subject. He who claims priority as a bona fide purchaser without notice must plead the facts. 2 Pomeroy’s Equity, §§ 784, 785; Deskins v. Big Sandy Co., 121 Ky. 601, 89 S. W. 695, 28 Ky. Law Rep. 565. Under the pleadings, as well as the proof, the circuit court properly gave Miller priority.
The petition for rehearing is therefore overruled.