Certain machinery had been mortgaged, by the owner, to E. E. McCloud, and said mortgage, so far as it appears, was properly recorded. Subsequently the owner of this machinery sought to move same to another location, the mortgagee, McCloud, having no knowledge thereof. Walter Hart was hired to move said machinery, and, after he had moved one load, a doubt crossed his mind as to whether or not he would be paid for his services. Upon talking with the owner, he was assured that a mortgage would be placed on the machinery and that he would be paid from the proceeds thereof.
Hart proceeded to move the balance of the machinery, the last load of which he diverted from the proper location to his own place of business. Later, the owner went into bankruptcy. Hart claimed a right in the property by reason of a common law lien resulting to him because he moved the property. Judgment in the Cleveland Municipal Court was rendered in favor of Hart, and error was prosecuted.
There is no evidence in the record that Hart ever had possession of this property which would give him a common law lien. He, at best, had only the custody of it in moving it from one place to another.
Its value was not enchanced in any way by reason of the work that the mover did upon it, so the lien of the mortgagee, McCloud, is paramount to the so-called lien of the mover, and judgment is reversed and entered in favor of McCloud.
(Levine, PJ., and Sullivan, J., concur.)