(SnrnFll 21am ^riynnl 2jtbrari| •CORNELL UmVERSITT . JUN 30 1909 lAW LIBRAIiY. Cornell University Library KFI1355.5.C69 Treatise on the mechanic's lien law of t 3 1924 024 669 024 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024669024 A TREATISE ON THE Mechanics Lien Law ■'I' OF THE STATE OF ILLINOLS, As in Force Vtarch. 1, 1894, so FAR AS THE SAME RELATES TO REAL ESTATE. J. P^ COLE MAN, COUNSELOR AT LAW. CHICAGO: The Wait Publishing Co. 1894. Entered, according to act of Congress, in the year 1894, by J. A. COLEMAN, In the office of the Librarian of Congress, at Washington, D. 0. TO The lyAWYER, The Scholar, The Man, THIS TREATISE , IS dedicated / THE AUTHOR. PREFACE. The Mechanic's Lien Law of the State of Illinois concerns, not only every onp furnishing materials, rendering services and perform- ing labor in the improvement of real estate, but every owner thereof, every person who holds security thereon for deferred pur- chase money, money loaned, or other indebtedness. This law was designed to promote the improvement of such property and secure the rights of labor, and under it the owner's title may be divested, the justly secured claim of the vendor for purchase, or the creditor for loaned money may be scaled down and impaired by the claim of one whom he has never seen, known, or contracted with, and whose right originated long subsequent to his. It may burden the property of an innocent purchaser for value, with a lien, secret and unrecorded ; yet enforceable after his acquisition and possession, when his vendor's insolvency would ciause him irreparable loss. The vast interests involved in this class of property in Illinois, as well as the security of materialmen, whose credited supplies, and the laborer, whose toil waiting payment, make such improve- ment possible, demand an accurate knowledge of this law on the part of all who own or deal with such property. For nothing in business life will supply the lack of prudence guided by com- prehensive information, and carefulness born of a correct under- standing of one's rights, duties, and liabilities ; while on the other hand, negligence and irregularity, due to anxiety for work or trade, and inattention to, or disregard of that knowledge and informa- tion, will make energy uselesss, effort fruitless, and the tenure of property precarious. ■n Preface. This law has been much abused, either because it has not been understood, or because it has been unwisely applied. Its careful study and full comprehension disclose a law, iu major part, wisely and fairly framed to serve and secure the rights of all, — owners, incumbrancers, and operators. This treatise is not designed to do more than present this law as the courts of this State have interpreted it, nor does it intend to be more than a time-saving convenience for the profession in the grouping of topics, citation of cases, and collection of different statutes with respect to mechanic's liens for reference in exam- ining decisions rendered under such statutes. Every case cited by our Supreme aiid Appellate Courts is given, and the decision in all, so far as applicable to the present law, are herein presented. While the special aim and intent of the atithor has been to make the work serviceable to business, as well as to professional men, the extreme delicacy of certain_ques- tions arising under the law, the nicety of their legal distinction's, and the necessity of accurate legal steps, not only in the enforce- ment of clfiims, but in the making of contracts, will call for the aid of those whose training and occupation best fit them to properly frame and direct the conduct of such affairs. It is especially hoped that this work will furnish such an understanding of their rights, obligations and liabilities to owners of real estate and of securities thereon, and to contractors, materialmen and laborers, as will enable the former to hold, and the latter to contract with safety in respect to its improvement. If it shall give this information in such manner as to save to some extent cost, time and trouble in remedial effort, the prin- cipal purpose of its preparation will have been accomplished. Chicago, III., March 1, 1894. J. A. COLEMAN. CONTENTS. CHAPTER I. THEORY — N A.TURE — CONSTRUCTION. Section 1. Nature of lien. Reasons for special protection under the law. 3. Is a secret lieu. Attaches when contract is made. 3. Is strictly statutory. Is in derogation of common law. Enforced by sale only. No remedy by receiver. 4. The lien on real estate only. Attaches to personal property only when attached to real estate. Attaches to movable machinery when part of a plant so attached . 5. Destruction of improvement does not release lien, except as to mortgagee. Does not follow improvements when detached. If wrongfully detached, court will follow proceeds. Mortgagee may insure for his own benefit. 6. Lien creditor may insure for his own benefit. 7. Remedy cumulative and concurrent. Suit at law and to enforce lien may be prosecuted at the same time. 8. Priority, none between lien claimants. 9. Is a chancery proceeding, quasi in rem. Binds only parties and privies. ~ 10. If lien is defeated suit fails. Owner cannot recover judgment exceptfor costs. Judgment for damages not allowed owner. Suit against owner and contractor fails, unless right to lien is shown. 11. Lien covers owner's interest in land. 12. Except tenancy at sufferance. 13. Extends to after-acquired interest., 14. Extends to whole tract of land used for common purpose. 15. Judicial notice taken that lots in different sections are different tracts. Distinctions between "lot," "piece" and "tract." 16. There is no lien against State, county or municipality, but there is against public buildings not so owned or controlled. 17. Lien against homestead. None exists against dower. Release of dower in mortgage will not assist lien. 18. Statute liberally construed on cases within it. viii Contents. Section 19. Statute strictly construed in bringing case within it. 30. Must be within language of statute, spirit will not prevail. Construction stricter where third parties involved. 21. Every necessary step to perfect lien must be shown 33. Creditor defined. Incumbrancer defined. 33. Must be acquired under statute in force when suit is brought. Enforced under statute in force when suit is brought. 34. Power of Legjislature over contracts. 35. Whole statute construed together. CHAPTER II. PERSONS ENTITLED TO LIEN. SECTlOlir 36. Only persons named are entitled to lien. 37. Original contractors. 38. Sub-contractors. 39. Sub-sub-contractors no lien. Where fund is in court a sub-sub-coutractor might be paid from it. 30. Each must take the steps designated by statute. 31. Sub-contractor's lieu depends on original contractor's contract. CHAPTER III. NECESSARY REQUISITES OF AN ORIGINAL CONTRACTOR'S LIEN. Section 33. Requisites of original contractor's contract. 33. Contractor must perform his contract. Owner entitled to benefit of contract. 34. No contract, no lien. 85. Minority, effect on lien. 36. Contract must be valid one. 37. Ultra mres. (Beyond corporate authority.) 38. Ultra vires of public corporation. Pretended agent gives no lien. _ 39. Contract may be inade out of State. Lien if materials used in this State. 40. Payments in property. 41. Fraudulent representations of owner. Quantum meruit, in case of. Fraud will not confer lien; may change price. 43. Architects. No lien for settlements with contractors. > No lien for whole price where part of contract is not within statute. 43. Powers and duties of architect. 44. Powers and duties of superintendent. 45. No lien where no contract with owner. Contents. ix Section 45. Equitable lien (not a meclianic lien) where party builds on land under mistaken claim of title, or is misled by owner. 46. No lien where sale is on personal credit. No lien to one guaranteeing payment. No lien where one building has nb title. 47. Removal of materials. Severance of improvement. 48. Owners. Possession not evidence of authority to build. No lien on tenancy at sufferance. 49. Agency. Owner liable though agency is not disclosed. 50. Declarations of agent do not prove agency. Fraud between seller and agent, only marlret value recoverable. 51. Batification of agency. Must be on full knowledge. Not implied from accepting improvement. Authority to build does not imply authority to build on credit. Authority to care for property does not imply authority to make extensive improvements. Specific authorized acts of agent do not infer further agency. 5^. Owner authorizing improvement, lien attaches. 53. Three classes of owners whose contract will not sustain lien ■ 1. In trust estates specially limited. 2. Contract made after, foreclosure begun. 3. Contract of sale. 54. Except where contract of sale authorized improvement. 55. Contract made with purchaser under contract of sale will sustain lien subject to vendor's rights. 56. Trustee with power to build consenting to improvement by cestui que trust confers lien. 57. Ownership by estoppel sustains lien. 58. Husband improving wife's land. If on his personal credit, no lien. 59. If wife misleads contractor, lien attaches. 60. Estoppel in general. 61. Improvement must be with owner's consent. Improvement must be before rescission of contract. 63. Landlord and tenant. Surrender will not forfeit lien. Forfeiture of lease will forfeit lien. If lien attaches before forfeiture, lien, claimant may pay rent and foreclose lien. 63. LessoT authorizing improvements, lieu on property. If improvements become lessor's, lieu on property. Lien attaches to leasehold for machinery which tenant may remove. Provision to purchase improvements not covenant gunning with land, and lien does not continue as against grantee. 64. No lien for improvements by insurance company. Nor by administrator. But for improvements by executor, if empowered, b X OONTENTS. Section 65. Contractor buying as agent ; if he pays, no lien. 66. Where one of several owners contracts, his interest bound. 67. Joint and co-tenants no lien as against each other. 68. No lien for party-wall without consent of adjacent owner. 69. CoTporation's contracts sustain lien. 70. Contract mast be to improve particular lot. 71. No lien for material on open account without reference to particu- lar lot. 73. Does not extend to adjacent lot of same owner, even if inclosed. Judicial notice taken of different townships. 73. In block of buildings, different roofs make difEerent liens. Common roof makes the lien common. Contract may be entire, but account must be kept against separate buildings. 74. If more than one building on same lot or tract, one lien for all . 75. Where materials removed from one lot to another of owner, lien on each for amount on each. 76. If tract used for common purpose, or a number of lots for common purpose, lien covers all. 77. Contract need not be for definite amount of material, nor provide for lien, nor describe property. 78. Less particularity of description of property necessary where house or building under process of construction. 79. Appurtenances must be on the same lot or tract. Cases of liens for appurtenances. Lien for furnaces. No lien for stoves. No lien for lightning rods. Lien for machinery where part of system attached to land. 80. Contract must be according to statute. Earlier acts applied solely to express contracts. Hequisites of such contracts. 81. Change by act of 1861, allowing liens under implied contracts. 82. Present law; limitation as to term of contracts, express, implied, or partly express and partly implied. 83. Terms of contract as made decide lien. 84. Lien depends on original contract, not on changes made in it. 85. Express contract, example of. 86. Extension of tiine ou condition; without condition. Days of grace ou one ^ear note do not vitiate lien of. 87. Not necessary to fix a certain date for completion or payment. But times must be within periods named by statute. Working test is date of completion. 88. Must do one of two things. 1. Make express contract limiting time of completion according to statute. 3. Or complete work within a year. 89. No time stated for performance or payment. Cases cited. 90. Law requires only request by owner and compliance within year. Contents. xi Section 91. Where contract express, except as to time of completion, lien jf completed in year. 93. Wbere working test fixes date of completion, date of test controls lien. 93. Importance of distinction between express and implied contract. 94. Character of labor or material must be such as statute provides for. No lien for hire of plumber's license, etc. No lien for part and lump price, no lien for any. ' 95. Contract must be performed, or non-performance excused. Distinction between contractor for work and for material. 96. No lieu for work unless done . No work done or no material furnished, no lien. No lien for work done after rescission of contract. If contractor oflEers to remedy defects, and is prevented, he has lien. 97. If contract for entire work, no lien if property burned or destroyed. Cannot apportion lien on entire contract. If to do only part of the work, he has lien in case of destruction. 98. Non-payment excuses abandonment, and lien for what done. Action on quantum meruit must be under sec. 11. 99. Where contractor is delayed, he has lien for extra expense. 100. Extra work provided for by contract is part of same. 101 . Promise to pay increased price not binding without consideration. 102. Allowing work after time provided for completion waives forfeiture. 103. Architects' certificates. Damages for delay. Form must correspond with contract. Fraud or mistake vitiates certificate. Plans, etc., competent to show fraud or mistake. Death of one of firm of architects terminates authority. Unless all recognize the survivor. Breach of contract by owner, no certificate necessary. Destruction of premises, no certificate necessary. 104. Damages where work not done according to contract, rule of. Damages allowed for services of owner. Damages for delay waived unless claimed at the time; Purchasers can recoup damages same as vendor to defeat lien. 105. Materialman no lien unless materials used. (See sec. 107.) 106. Architect no lien unless building erected. 107. Materialman no lien unless material used. (See sec. 105.) 108. Right of materialman to recover on furnishing material, whether used or not, and discussion of cases in regard thereto. CHAPTER IT. PERFECTING THE ORIGINAL CONTRACTOR'S LIEN. Section 109. Contractor must file claim for lien. Character of such claim. 110. Must be against the owner when contract is made. 111. Must correctly describe the property. xii CoNTEiirTs. I Section 113. Must be itemized and particulars necessary. Stating amount due in lump sum not sufficient. Must show dates and amounts of credits. 113. Where different houses, claim must be against each. If one roof cover all, one claim sufficient. 114. Must be properly verified. Cases of defective verification. 115. Of proper verification. 116. Object of claim. CHAPTER V. SUB-CONTRACTORS. Section 117. Earlier laws, no lien to sub-contractors. Change in laws. 118. Liability of owner where notified. Sub-contractor should serve notice when he makes contract. 119. Amendment of 1891 as to form of statement ; sec. 35. 120. Necessity of statement under law of 1887. 131. Cases under law of 1887. 133. Section 35, amended in 1891. ^ Statement not condition precedent to demand for payment. Owner's payments without statement probably not illegal. Contractor must furnish his statement if demanded. Owner's only safety is to demand statement. Sub-contractor's only safety is to serve notice. 138. Sub-contractor's lien attaches ttt date of origipal contract. Only to extent of contract price. All liens cannot exceed this. 134. Original contractor must furnish statement on written demand. Penalty of not furnishing. What this statement must contain. Statement by sub contractor to contractor. 135. Effect of this statement. Owner must pay contractor as soon as he makes it. Defective statement, owner paying on faith of it, protected 136. Former section for benefit of sub-contractor. Present section for benefit of owner. ' , 137. Notice to owner makes statutory contract between owner and sub-contractor. 138. Owner's obligations. 139. Sub contractor's obligations. Work must be pursuant to original contract. Original contract must be performed in some way. Payment must be according to original contract. Payment in land. Contract price distributed. Sub-contractor must show original contract, either performed or abandoned. 130. Extent of sub-contractor's lien. Contents. xui Section 130. Cases wliere more extensive tlian contractor's lien. Lien to each class dependent upon independent prpvisions. First twenty-eight sections apply to original contractor only. Thereafter to sub-contractors only. 131. Laborers preferred. Have absolute lien for twenty days on ten per cent of value of work done, which owner may retain. Lieu good where contract abandoned. Laborers pro rate, and with each other only. 183. Owner has tea days to pay sub-contractor. 133. Suit at law against owner and contractor. Judgment dependent on right to lien. 134. Wrongful payments are those: Made after ■notice to owner by contractor's statement. Made after notice served by sub-contractor. As to laborer, if made within twenty days and in excess of ninety per cent. Uncertainty of obligation to demand contractor's statement 135. Sub-contractor's lien limited to amount due original. 136. Abandonment by original contractor. Remedy of sub-contractor. Liability of owner. Sub-contractors can recover only under section 45. 137. Lien for work done after abandonment prior to lien for work done before. ' 188. Fraudulently low price in original contract. Owner must pay sub-contractors a fair price. Fraud must be clearly established. 139. Fraud does not aid in establishing lien. Nor excuse delay through carelessness or oversight. Case of. CHAPTER YI. PERFECTING LIEN OF SUB- CONTRACTOR. Sbotion 140. Notice not to be filed with clerk. 141. Must be served personally. Copy of contract to be attached, when. Address of notice. 142. Limitation of forty days. Orders accepted before notice served. 143. Action at law against owner. 144. Garnishment of owner, and rights of sub-contractor. 145. Service on owners non-resident or not found in county. Filing with clerk. Publication or posting. , 146. Effect of notice. Extent of lien. 147. Owner must pay to sub-contractor first. 148. General settlement — proceeding for. Xiv CONTEilTS. Section 148. Bill of interpleader. Will not lie if nothing due. Only owner or lienholder can file. 149. When notice not necessary. Excuse of. Not if owner notified by contractor's statement. CHAPTER VII. ARBITRA.TION. ASSIGNMENT. Section 150. Arbitration does not release lien. Suit begun revokes arbitration. Statements during arbitration competent evidence. 151. Assignability not decided. Suit " to use, etc. " not an assignment. Assignee pendente lite may enforce. Assignee of contract may enforce. Holder of lien claim as collateral must prosecute. 152. General assignment by owner does not defeat lien. Accepting dividend in assignment does not defeat lien. 153. General assignment by original contractor. Bights of sub-contractor in case of. CHAPTER Till. INCUMBRANCES. Section 154. Incumbrances and liens as apportioned, 155. Section 17. 156. Rule of apportionment. 157. Case of. 158. Value of land, what meant. , 159. Value of improvements, what meant. 160. Cases cited. 161. Prior mortgage scaled — Incumbrancer probably cannot prevent this. 163. Fraudulent incumbrances. 163. Lienholders may contest each other's claims. 164. Lien attaches when contract is made. Incumbrances after this is subject to liens. 165. When date of mortgage is important. 166. Lien prior to mortgage void for informality. 167. Mortgage on equitable estate. 168. Purchaser takes subject to attached liens. Purchaser pendente lite. Purchaser reserving part of money. Sale under deed of trust. Purchaser not liable personally. 169. Bond or contract for deed by vendor. Contents. xv Section 169. Vendor prior to lien. Bond securing purchase-money and loan, prior not absolute as to loan. Conveyance after improvement — change of rights. Deed and bond to reconvey, is mortgage only. 170. First lieuholder accepting subsequent mortgage releases first lien. 171. Extension of time. Beyond statutory period. 173. Improvements paid for by owner or mortgagee. 173. Lienholders pro rate. 174. Sale subject to prior mortgage. Owner cannot complain. Lienholder may. 175. Claims not yet due. Must rebate interest. Mortgage not yet due. Decree should not order owner to pay'^it. In case of sale it must be paid as due. 176. May sell first and take testimony as to value afterward. Should be value of land at date of contract. CHAPTER IX. LIMITATIONS. Section 177. General statute does not apply. Limitations in Mechanic's Lien Act. 178. None as to when work is to be begun. 179. Limitation for filing claim for lien. None as to owner. Four months as to others. Runs from time of payment. 180. Limitation as to sub-contractor's notice. 181. Laborer's claim, service of notice. To hold to ten per cent, must be within twenty days. To hold lien must be within forty days. Is a preferred claim. 182. Limitation controlled by original contract. Payment on completion. Limitation runs from completion. Defects remedied. Working test. Clianges provided for by original contract. When giving mortgage is condition precedent. 183. Entire contract, lien runs from completion. 184. Those proving claims in probate court are judgment creditors. 185. Limitation runs from maturity of debt. Vendor wrongfully delaying delivery. Tender, how made. 186. Extension of time by sub-contractor may release owner. 187. Customs as to date of payment. xri Contents. Section 188. Limitation as to suit by original contractor. When can and must be brought. Runs from time of filing claims. Kuns in favor of all — two years. 189. Limitation as to suit by sub-contractor. Runs from time money is due him. Or from time money is due original contractor. 190. New parties by amendment. 191. Thirty-day demand by owner. 193. Importance of limitations. CHAPTER X. REDEMPTION. SATISFYING LIEN PAID. CIRCUIT COURT CLERK'S DUTIES. Section 193. Redemption. 194. Neglect to satisfy lien paid. Penalty. 195. Clerk's fees ; abstract. Manner of keeping books for original and sub-contractor. CHAPTER XI. WAIVER AND RELEASE. Section 196. Taking note pn'ma/aa« does not. Suing at law does not release lien. 197. Release by estoppel. 198. Acceptance of draft or order. 199. Taking other security releases lien. Taking security on same property will not. 200. Part payment in real estate no release as to rest. 201. Accepting dividend in general assignment does not release. 202. Appointing receiver and assignment to him ordered but not made, no release. 203. Limitations release lien. 204. Release for particular purpose does not release as to others. Purpose may be shown. ' CHAPTER XII. PLEADING AND PRACTICE. Section 205. Nature of action. An assignment in rem. Parties and privies bound. Who are proper parties. Title taken by purchase. Contents. xvii Section 305. Jurisdiction — -what courts have. 306. Bill or petition. When to be sworn to. 307. Petition of original contractor. Requisites. 308. Original contractor has two forms of action. 309. Sub-contractor has five forms of action. 310. Petition of sub-contractor. Requisites in general. 311. Where he sues for general settlement. 313. When original contractor abandons. 813. General practice. Must plead cause within statute. Bates must be alleged. Material allegations discussed. 314. If note taken it must be surrendered before decree. If reduced to judgment it must be canceled. 815. Petition must set out nature of contract. Copy of contract attached as exhibit will help defective pleading. Contract alleged must be proved. Variance — cases of. 816. Must show completion within time limited by statute. Particular date not necessary. Must show amount due. 317. Must show architect's certificate where contract requires. Or excuse non-production. 318. Must allege performance. Particular cases. 319. Estoppel, if relied on, facts set out must show Agency, if relied on, must be set up. 330. Interest, if desired, must be shown. 381. Must give description. Petition may cure description in contract. Admission in answer will prove ownership. Correct description in petition'will not cure mistake in claim — cases of. / 333. Suits must be brought by parties entitled to lien. And herein of parties in interest. 823. Partnership. Dissolution and formation of. 324. All parties in interest may be made parties. Service on non-residents. Practice as in chancery. Unknown owners. 235. Active trust, cestui que trust not necessary parties. Passive trust, cestui que tru^t a necessary party. 336. Heirs. Executors. Administrators necessary parties. 337. Defunct corporations not necessary parties. 238. Unpaid claimants necessary parties. C xviii Contents. Section 338. IncumbranceTS necessary paities. Mortgagees necessary parties. Judgment creditors necessary parties. Purchasers necessary parties. Liens not yet due, claimants necessary parties. 239. Those not made parties cut off. 330. Improper parties. 331. Those acquiring interest pendente Kte proper, but not necessary parties. 383. Amendments. As in chancery. Continuance, when granted for. 333. When a new cause of action. When contract is substantially the same, limitation will not bar. 234. Service of summons, personal. 335. Service by publication. 236. Appearance by solicitor. 337. Answer. When evidence. Set off, when responsive. Payment to third party, when responsive. 238. Damages cannot be recovered. Damages may be a defense. Crossbill may be attached. iOross-bill may pray to have cloud removed. 239. Cross-bill not necessary in mechanic lien proceeding. Incumbrancer may make answer cross-bill. Claimant may contest other claims. 340. Assignee of incumbrance must aver he held same at time the suit was begun. 241. Incumbrancer cannot by answer set up claim for materials fur- nished. 343. Limitations must be pleaded. 348. Defense, how set up. 344. Defendant may buy outstanding title. 345. Averments in case of abandonment. 246. Averments as to non-ownership. 247. Plea in abatement not good. Consolidation of causes. 248. Replication must be general. Explanation of new matter in answer must be by amendment to bill. 349. Demurrer as in other chancery causes. Proof may aid defective pleading, if not demurred td. Demurrer for parties must show specific ground of. Special cases of demurrer. 250. Suits on chancery docket. Trial by jury. Verdict advisory only. Several claims may be submitted to diCerent juries. OOKTBNTS. Xil Section 351. Consolidation of cases. May be made if in same or difEerent courts. 353. Trial should he prompt. pne claim should not delay others. Sale may be delayed. 353. Decree. Must decree lien. If no lien no judgment against owner. Contents of decree in general. Ascertain rights of all parties to suit. Decree should not direct sale until amounts due each determined. Need not find interest of parties in default. 354. Apportionment. Distribution of proceeds. 355. Value of both land and improvements must be found. 356. Judgment for deficiency only. 357. Rights of sub-sub-claimant in fund. 358. Only out of what diie original paid sub-contractor. No special execution in action at law. 359. Various tracts in same suit. 360. Must not sell improvements without land. Must not sell to pay part of debts. If both legal and equitable owners parties, sale of land sells both titles. May sell interest of all whom lien affects. If not necessary to pay debt, less should be sold. 361. Must show it against right property. 368. Decree for sub-contractor must be against both original contractor and owner. 363. Must show materials were bought for property subject to decree 364. Defaults. May be taken as in other cases. Interest of one in default may be sold. Rule to plead not necessary in service by publication. Rule to answer not necessary when demurrer overruled. Admits only what is well pleaded. 365. Decree pro confesso is discretionary with court. Decree pro confesso may be rendered if answer insufficient. Decree cannot be taken against wife in default. Decree when suit is lien on husband's property. Motion and affidavit for bond does not prevent default . 366. Officer making sale. Sale must be in accordance with decree. 367. Sale to party to record set aside on reversal of decree. Sale to party not a party to record not set aside. 368. When court may set decree aside. 369. When bound by erroneous decree. 370. Costs. 1 As between lien claimants abide event of, suit. As between creditors and incumbrancers subject to the order of court. XX Contents. V Section 271. Bills of review, writs of error. 273. Appeals. Record need not show evidence to support decree. Party complaining must preserve it. Objection as to section under which suit is brought, must be made in trial court. 273. Original contractor may appeal from lien decree. 274. Defective pleadings aided by verdict. 275. Want of proper parties will reverse decree. 276. Variance must be objected to in trial, / 277. Powers of upper court. TABLE OF CASES RELATING TO Mechanic's Likns, DECIDED BY THE Supreme and Appellate Courts of the State of Illinois. A Faoe. Adamsv. Russell, 85 111. 384 114, 175 Adler v. World's Pastime Co., 26 Ap. 538 33, 48, 45, 50, 143, 144 Adler v. World's Pastime Co., 136 111. 373 23, 42, 50, 143 Ahern v. Evans, 66 111. 125 15 Albrecbt v. Kraisinger, 44 App. 313 175 Anderson v. Armistead, 69 111. 452 33, 34 Arbuckle V. I. M. R. R., 81111. 429, 121 Armsb7 v. People, 20 111. 155 11, 139 Austin V. Wohler, 5 Bradw. 300 25, 42, 45, 113, 144, 159, 161 B Bannon ▼. Thayer, 24 App. 428 152 Bannon V. Thayer, 124 111. 451 ... 153 Baptist Church v. Andrews, 87 111. 172 , 5, 7, 139, 168 Barstow v. McLachlan, 99 111. 641 23, 88, 103, 103, 133, 159 Barton v. Steinmetz, 37 App. 141 13 Bayard v. McGraw, 1 Bradw. 134 69, 88, 127, 131, 133, 144, 168 Baxter v. Hutchings, 49 111. 116 36, 38, 44, 45 Beasley v. Webster, 64 111. 458 47, 133, 133 Beck Lumber Co. v. Halsey, 41 App. 349 67, 69, 70, 80 Beese v. Becker, 51 111. 82 176 Belanger v. Hersey, 90 111. 70 3, 8, 10, 45, 122, 144, 145 Benner v. Schmidt, 44 App. 304 142 145 Benneson v. Thayer, 23 111. 317 133 Bennitt v. Star Mining Co. , 18 Bradw. 17 Ill, 113, 137, 174 Bennittv. Star Mining Co., 119 111. 9 111,113,137,153, 174 Berkowsky v. Sable, 43 App. 410 13, 15, 91 Biggs V. ciapp, 74 111. 335 13, 93. 93, 94, 133, 140, 161 Bishop V. Busse, 69 111. 403 54 Boals V. Intrup, 40 App. 63 10, 80, 126, 143, 162 Board of Education v. Greenebaum, 39 111. 610 9, 37, 68 Board of Education v. Neidenberger, 78 111. 58 9 ?xii Table of Cases. Page. Bouheim v. Meany, 43 App- 532 80 Bouton V. McDonougli County, 84 111. 384 5, 7, 9, 15, 22,^91, 168 Bradley V. Simpson, 93 111. 93 108, 109, 110 Brady v. Ajiderson, 24 111. Ill 10, 44, 40, 131, 132, 143, 146 Brown v. Lowell, 79 111. 484 41, 53, 87, 91, 97, 99, 123, 162, 175 Brown v. Moore, 26 111. 422 116, 124, 128 Bruck v. Bow«rmaster, 36 App. 510 32, 84 Bryan v. Whitford, 66 111. 33 10, 11 Bachter v. Dew, 39 III. 40 116, 166 Buckley v. Boutellier, 61 111. 293 42, 149 Burkhart v. Reisig, 24 111. 530 25, 38, 39, 44, 143 Burns V. Lane, 23 App. 504 25, 27, 28, S8, 41, 42, 148 Burnside v. O'Hara, 35 App. 150 50 Bush V. Connelly, 33 111. 447 145, 150, 172 Butler & McCracken v. Gain, 128 111. 23 3, 10, 76, 101 c Cairo & St. L. R. R. v. Cauble, 4 Bradw. 133 3, 143 Cairo&St. L. KrE. v. Cauble, 85111. 555 '. 143 Cairo & St. L. B. R. v. Watson, 85 111. 531 15 Cairo & Vincennes R. R. v. Fackney, 78 111. 116 36, 102 Campbell v. Jacobson, 145 111. 389 25, 32, 33, 67, 69, 143^ 148, 162 Campbell v. Jacobson, 46 App. 287 32, 33, 143, 162 Canisius v. Merrill, 65 111. 67 1 3, 8t 10, 43 Carney v. TuUy, 74 111. 375 3, 10, 11, 96 Carroll V. Crane, 4 Gilm. 563 , 144, 146 Chicago Artesian Well Co. v. Corey, 60 111. 73. . . , 45, 49, 59, 103, 113 Chicago Sash, Door an(i Blind Co. v. Shaw, 44 App. 618 13, 76, 77, 83 Chisholm v. Randolph, 21 App. 312 8, 42, 46, 122 Chisholm v. Williams, 128 111. 115 .8, 46, 122,124, 144 Clark V. Manning, 4 Bradw. 649 118, 127, 165 Clark V. Manning, 90 111. 380 .' 38, 41, 44, 45, 49, 118, 127, 148, 152, 165 Clark V. Manning, 95 111. 580 127, 152- Clark V. Moore, 64 111. 273. . . .2, 3, 110, 111, 113, 116, 119, 132, 152, 154, 171, 173 Clark V. Boyle, 51 111. 104 .6, 157 Claycomb V. Cecil, 27 111. 497 11,45, 125, 146 Clement v. Newton, 78 111. 427 38, 131, 144 Coburn v. Tyler, 41 111. 354 ., 44, 45 Columbia B. & L. Assn. v. Taylor, 25 App. 429 ^ 152 Columbus Machine Mfg. Co. v. Dorwin, 25 111. 153 44, 143 Condict V. Flower, 106 111. 105 5, 109, 118 Conklin V. Plant, 34 App. 264 76, 140, 141, 174 Cook V. Heald, 31 111. 435. ..-. 3,5,10,44,122,142, 143 Cook y. Vreeland, 21 111. 431 44, 122, 143 Cooke V. Murphy, 70 111. 96 54 Corey V. Croskey, 57 111. 351. 4.5, 59 Coxv. Colles,17 Bradw. 503 ...35, 56, 131 Cox V. Keiser, 15 Bradw. 432 ,. . . , 126, 158 Croskey v. Corey, 48 111. 443 , 88, 59, 63, 133. 142, 165, 170 Croskey V. N. W. Mfg. Co., 48111. 481. .3, 3, 6, 109, 110, 116, 117, 151, 166, 167, 174 Table of Oases. xxiii Page. Crowl V. Nagle, 86 111. 437 10, 46, 133, 137, 181, 143, 153 Culver V. Elwell, 73 111. 586 5, 39, 40, 69, 88, 93, 98, 99, 158, 161, 168, 169 Culver V. Fleming, 61 111. 498 97, 99, 139 Cunningham v. Ferry, 74 111. 436 : 45, 157 Curran v. Smith, 37 App. 69 4, 43 ». Davidson v. Provost, 35 App. 136 34, 55 Davis V. Conn. M. h. Ins. Co., 84 111. 508 39 Dawson v. Harrington, 12 111. 300 35 Delahay v. Clement, 3 Scam. 303 5 Dingledine v. Hershmau, 53 111. 380 109, 110, 166, 171, 173 Dobschuetz v. Holliday, 83 111. 371 8, 35, 36, 43 Donaldson v. Holmes, 33 111. 83 7, 8, 32 Douglas V. Davies, 23 App. 618 160 Douglas V. MoCord, 13 Bradw. 378 93, 144, 146 Downey V. O'Donnell, 86 111. 49 84, 54, 55 ■ Downey v. O'Donnell, 92 111. 559 34, 54, 55, 138, 139, 148, 155 Doyle V. Munster, 27 App. 180 86, 93, 140, 141, 143 Dreunan V. Huskey, 31 App. 208.. '. 174 Drew V. Mason, 81 111. 498 - . . , 43 Driver v. Ford, 90 111. 595 45, 144, 146, 155, 175 Dumphy V. Riddle, 86 III. 33 6, 11, 111, 137, 133, 153 E. Elgin Lbr. Co. v. Langman, 33 App. S50 5, 113 Ellet V. Tyler. 41 111. 449 5, 113 Ewing V. Fiedler, 30 App. 303 34, 54, 55 Byster v. Parrott, 83 111. 517 54 First Baptist Church v. Andrews, 87 111. 173 5, 7, 139, 168 Pish V. Stubbings, 65 111. 492 44 Pitzhugh V. Smith, 63 111. 486 33, 170 Floyd V. Rathledge, 41 App. 371 80 Franklin Savings Bank v. Taylor, 131 111. 376 3, 6, 28, 29, 111, 119 Freeman v. Arnold, 39, App. 216 3, 111, 119 Friebroth V. Mann, 70111. 523 170 Friedman v. Roderick, 20 Bradw. 622 103 G. Gain v. Butler & McCracken, 39 App. 435 76, 80 Qardnerv. Hall, 29 111, 277 , 47, 123, 132,156, 159 Gardner v. Watson, 18 Bradw. 386 36, 68, 127 Garrett v. Stevenson, 3 Gilm. 261 , 7, 12, 130, 1,57, 163 Gaty V. Casey, 15 111. 190 3, 3, 4, 5, 33, 57, 110, 111, 113 Geary v. Bangs, 33 App. 583. 53 Geary v. Bangs, 37 App. 301 , 5 Geary v. Hennessy, 9 Bradw. 17 33, 33, 148 Goul4 V. Garrison, 48 111. 358 156, 166, 170, 171 xxiT Table of Cases. Page. Goto V. Gather. 23 m. 634 9,10, 59, 154, 171 Graham v. Meehan, 4 Bradw. 532 45 Gregg V. Renfrews, 24 111. 631 157 Greene V. Sprague, 120111. 416 5, 6, 7, 39, 164, 168 Greenleaf v. Beebe, 80 A. 520 27, 154 Grundiea V. Hartwell, 90 111. 324 45, 144, 146, 166, 167 H Haines v. Chandler, 36 App. 400 3, 10, 45, 48, 49, 103 Hamilton v. Dunn, 23 111. 259 171 Harwood V. Brownell, 32 app. 347 45, 49 Havighorst V. Lindberg, 67111. 463 51, 91, 133, 140 Heiman v^. Schroeder, 74 111. 158 51, 148,163, 175 Hellman V. Schneider, 75111. 422 '. 56, 100, 141 Henderson v. Connelly, 23 App. 601 28, 30, 31, 168 Henderson v. Connelly, 123 111. 98 28,30,31, 168 Hickox T. Greenwood, 94 111. 366 30, 111, 114, 119, 166 Higgins V. Ferguson, 14111.269 32 Hillv. Bishop, 35 111. 307 38, 39, 63 Hintzev. Weiss, 45 App. 220 .' '. 76, 85 Hobart V. Reeves, 73111.527 147, 148 Horrv. Slavik, 35 App. 140 35,51, 60 Howettv. Selby, 54 111. 151 , 109, 110, 159 Hughes V. Russell, 43 App. 430 12, 75 Hunterv. Blanchard, 18 111. 318 59, 111 Huntington v. Barton, 64 111. 502 10, 119, 120, 123, 126, 133 J Jacoby v. Scougale, 26 App. 46 45, 175 James v. Hambleton, 42 111. 308 11, 40, 69, 156, 169 170 Jennings v. Hinkle, 81 111. 183 120, 153, 174 Johnson v. Eastabrook, 84 111. 75 168 Judson V. Stephens, 75 111. 255 35, 154, 163 173 K Kankakee Coal Co. v. Crane Bros. Mfg. Co., 28 App. 371 8, 41, 45 Kankakee Coal Co. v. Crane Bros. Mfg. Co., 38 App. 555 (see 138 111. 207). Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 111. 627 8, 10, 41, 131, 144 Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 111. 307 133 Kelly V. Chapman, 13 111. 530 6, 152, 154, 166, 167, 171, 174 Kelly V. Kellogg, 79 111. 477 116, 124, 135, 173 Kidder v. Aholtz, 36 111. 478 113, 169, 174 Kimball v. Cook, 1 Gihn. 433 6, 11, 12, 146, 157, 161, 163 Kinney v. Hudnut, 3 Scam. 473 118, 119, 126, 128, 142, 144 Kinney v. Sherman, 38 111. 530 12, 13, 21, 44. 53 Kinzey V. Thomas, 38 HI. 502 44, 132 Kipp V. Massin, 15 Bradw. 300 51^ 172 Knight V. Begole, 56 111. 122 12^ 13 Koeritz v. Neimes, 36 App. 562 I75 Table of Oases. xxv L , Paoe. L. S. & M. S. R. E. V. McMillan, 84 111. 308 157, 173 Lamb v. Campbell, 19 Bpadw. 373 153 Langford v. Maokey, 13 Bradw. 333 109, 113, 115, 134 Lavery v. Brooke, 37 Bradw. 51 129, 149 Legnard v. Armstrong, 18 Bradw. 549 98 Lehman v. Clark, 33 Bradw. 33 45 Lewis V. Graves, 84 111. 306 113, 113 Lewis V. Rose, 83 111. 574 169, 174 Linnemeyer v. Miller, 70 111. 344 I'il Link V. Architectural Iron Works, 34, 111. 651 11, 155 Little V. Vredeuberg, 16 Bradw. 189 , 35,33, 33 Littlefield v. Sohmoldt, 34 App. 634 '. 155, 173 Logan V. Dunlop, 3 Scam. 189 143, 144 Lomax V. Dore, 45 111. 379 6, 153, 154, 165 Lombard v. Johnson, 76 111. 599 38, 40, 41, 43, 149, 150, 170 Lubliner v. Teomans, 65 111. 305 171, 175 Lunt V. Stephens, 75 111. 507 103, 113, 130, 133, 134, 155, 165, 166 M Major V. Collins, 11 Bradw. 658 39, 40, 103, 168 Manowsky v. Conroy, 38 App.. 141 , 98 Marski v. Simmerling, 46 App. 531 88, 140 Martin V. Eversal, 36 111. 333 43, 145, 155, 157, 165 Martin v. Swift, 130 111. 488 3, 7, 10, 01, 164, 168, 174 Martine V. Nelson, 51 111. 433 ..32,33, 43 Mathes v. Dobschuetz, 73 111. 438_ 35 Maxwell V. Koeritz, 35 App. 800.'. 13, 15, 89,105, 169 McAuley V. Carter, 33 111. 53 24, 51, 55, 146, 147 McCarthy V. Neu, 93 111. 455 6, 46, 133, 157, 163 MoCarty V. Carter, 49 III. 53 8, 36, 37, 38 McDonald v. Rosengarten, 35 App. 71. . . 10, 13, 48, 69, 70, 71, 130, 136, 130, 143 McDonald V. Rosengarten, 134111. 126.... 10, 13, 45, 48, 69, 70, 71, 130, 126, 130, 143 McGraw v. Bayard, 96 111. 146 69, 88, 137, 181, 132, 158, 154, 168 McGraw v. Storke, 44 App. 811 25, 33, 100, 174 McLagan v. Brown, 11 111. .519 Ill, 153, 154 McLurken V. Logan, 33111. 79 8, 10,44, 143 Meeks v. Sims, 84 111. 433 91, 127, 131, 1.32, 133 Mehrle v. Dunne, 75 111. 239. .. . 30, 87, 88, 93, 98, 94, 116, 140, 141, 142, ,153, 153, 166, 175 Metz V. Lowell, 83 111. 565 56, 89, 90, 93, 97 Michaelis v. Wolf, 33 App. 645 34, 54, 55, 146, 147 Miller v. Ticknor. 7 Bradw. 393 109, 165, 166 Mills V. Heeney, 35 111. 178 148 Moore v. Bracken, 37 111. 38 173, 175 Moore V. Smith, 34 111. 513 31,86,157 Moorehouse v. Moulding, 74 111. 333 91, 93, 94, 161 Morrison v. Stewart, 34 111. 34 6, 157, 175 Moser v. Matt, 24 111. 199 44, 46 MuUerv. Smith, 3 Scam. 544 144 d xxvi Table of Cases. Paob. Naughten v. Palmer, 46 App. 574 (statement, act 1887) Nelson v. Pickwick Asso. Co., 30 App. 333 58, 54 Nesbitt V. Dickover, 22 App. 140 98 Newhall V. Kastens, 70 111. 156 15, 99, 100, 141, 168 Nibbe v. Brauhu, 24 111.^268 , 11, 54, 82, 165, 175 North Pres. Churcli \' trust deed or , mortgage placed thereon, any lien by judgment,, any sale thereafter is subject to it.' §3. Is strictly statutory. — Hence it is that our courts hold that the mechanic's lien does not spring from, but it is in derogation of the common law ; " is opposed to common right ; is a privileged remedy to a pai-ticular class;' is not a matter of right, but of statutory grace.* It is a statutory mortgage on real estate that draws its life solely from the statute creating it, and must fulfill every requirement of that statute to gain and maintain its existence; comply with every pro- vision of it to complete and accomplish tiie purpose of that creation.^ It gives no right to withhold the owner or deny him possession of his property, or in any way molest him in that possession, or to interfere with his use thereof, unless such use tends to impair its value as a security, as for instance, when an injunction could be properly invoked to prevent such injurious use. It gives no right of ejectment ; no right to ask for a receiver for rents and profits ; no right but to enforce the sale of the property as the statute pre- scribes to satisfy the debts that it secures. ' Clark V. Moore, 64 111. 873 ; Thielman v. Carr, 75 id. 385; Paddock v. Stout, 121 id. 571; Franklin Savings Bank v. Taylor, 131 id. 376; Stout v. Sower, 23 App. 65; Freeman v. Arnold, 39 App. 316. "^ McLurken v. Logan, 23 III. 77; Canisius v. Merrill, 65 id. 67; Carney v. Tally, 74 id. 375; Belanger v. Hersey, 90 id. 70; Butler & McCracken v. Gain, 128 id. 23; Williams V. Vanderbilt, 145 id. 238; C. &St. L. R. R. v. Cauble, 4 Bradw. 133. sGaty V. Casev, 15 111. 190; Cook v. Heald, 21 id. 425; Smith v. Moore, 26 id. 392; Croskey v.'N. W. Mfg. Co., 48 id. 481; Clark v. Moore, 64 id. 273. * Haines v. Chandler, 26 App. 400. 'Underhill v. Corwin, 15 111. 556; Swift v. Martin, 20 Bradw. 515; Martin v. Swift, 120 111. 488. 4 Mechakic's Lies- Law. § 4. The lien on real estate only. — The lien under this statute secures solely debts for that which becomes attached to, and a part of, and which thus merges into real estate. An eminent member of our appellate court dissented from the opinion that held this lien to cover those absolutely necessary parts of one common system of machinery, that were not attached to the land, and the majority of the court so held only because the improvement as a whole fixed the character of Jhe property, and it required each and every part to make one entire and complete system.' When work is done or materials are furnished under the provis- ions of this law, they become a part of the land, and together with the ground upon which the improvement is made, form one entire thing, that is real estate ; and however many interests there may be in the land, and. by whatever names they may be known, all together constitute the land.'' The lien created by the law is not against the specific thing fur- nished, nor necessarily against the interest alone in the land of the party for whom they are furnished, but against the land in this comprehensive sense.' As a rich oriental perfume pervades every vacant space of the loftiest chamber, so does this lien, like a subtle -essence, insinuate itself into every fibre of the material put upon and constituting that particular parcel of land ; into every stroke of the architect's pen in -preparation of plans and specifications therefor; into every effort of superintendent, mechanic or laborer whose skill directs or toil fastens the material to its permanent place.' § 5. Destruction of improvement does not release lien, except as to mortgagee. — Althougli the entire materials, buildings and improvements, on account of which the lien accrued, are removed, rendered worthless or destroyed by accident, the lien still continues against the land.' The lien being against the land does not follow the materials furnished from place to place. "When severed from the land they become personal property, and must be governed by the rules relating to such property until united with or merged in the land.' Yet, if wrongfully removed and sold, the court will treat the pro- ' Curran v. Smith, 37 App. 69. «Gaty V. Casey, 15 111. 190; Steiglemtta v. McBride, 17 id. 300; Sontaff v. Brenuau, 75 id. 379. 3 Underbill v. Corwin, 15 111. 556. Theoet — Nature — C onstbuctio jt. 5 ceeds as real estate still, and will pursue it into the hands of the party so converting it and subject it to the lien.' As between owner and lien claimant, destruction of the improve- ments by fire does not release the lien upon the land.° It does, so far as prior incumbrances are poncerned.' The proceeds of mate- rials severed bj'fire and sold are subject to the lien, so the insurance money.' But where a prior mortgagee had the property insured in the owner's name, loss, if any, for the mortgagee's benefit, and paid for the insurance, it was held his right thereto was superior to the lien. Had the owner paid for this insurance, the case would have been different.' § 6. Lien creditor may insure for liis own benefit. — It is an insurable interest which the lien creditor can protect ; and where policies of insurance provide that liability of the company insuring ceases if the property is encumbered, without the written consent of such company, notice of such liens should be given to the company by the owner. § 7. Remedy. Cumulative and concurrent. — It is a cumula- tive remedy." To the ordinary remedy for debt is added that of the lien as an appropriation of a specific thing. If the lien be defeated, the ordinary action of assumpsit will lie ; or case, in event of fraud.' If the property affected fails to satisfy the decree, a general exeeu- lion can be issued against the owner to satisfy the balance unpeiid to the original, and, under certain conditions, to the snb-contractor or sub-claimant.* It is concurrent ; the creditor can sue for his claim in ordinary - action of assumpsit, by attachment, or on the case, and to enforce his lien at the same time, and in the same or different courts, and maintain his different actions, until his debt is satisfied by one or the other, but only one satisfaction can be had.° § 8. Priority, none between lien claimants. — There is no pri- I Gaty V. Casey, 15 111. 190; Ellett v. Tyler, 41 id. 449. ^ Gaty V. Casey, 15 111. 190; Sontag v. Brennau, 75 id. 279; Elgin Lumber Co. v. Langman, 33 App. 350; Paddock v. Stout, 131 111. 571. s Condict v. Flower, 106 111. 105. * Gaty V. Casey, 15 111. 190; Sontag v. Brennan, 75 id. 379; Elgin Lumber Co. V. Langman, 33 App. 250; Paddock v. Stout, 121 111. 571. s Elgin Lumber Co. v. Langman, 33 App. 350. » Delahay y. Clement, 3 Scam. 203; Templeton v. Home, 83 111. 491. ' Geary v. Bangs, 37 App. 301. 8 Bouton V. McDonougli Co., 84 111. 384; Baptist Churcli v. Andrews, 87 id. 173; Green v. Sprague, 130 id. 416; ady., 18 Bradw. 476; Race v. Sullivan, 1 id. 94; sec. 35, act 1874, as amended. ' West V. Plemming, 18111. 248; Cook y. Heald, 21 id. 425; Culver v. Elwell, 78 id. 586; Geary v. Bangs, 37 App. 301. 6 Mechanic's Lien Law. ority between lien claimants on account of the times when they made their contracts, performed services, or furnished materials, nor can any one reap the preference of diligence by first instituting his suit to enforce his lien. All stand on the same ground, regardless of any of these conditions, and share ^^-o rata in the proceeds of the sale of the property affected.' § 9. Chancery proceeding, quasi in rem. — The enforcement of this lien is an action in rem, in so far as it cannot affect other property of the owner until the particular property improved is exhausted. Yet, not such an action in rem as to bind others than parties and privies to tlie action. It is a chancery proceeding, sub- ject to chancery rules, save where the statute has otherwise pro- vided, and will stand on tlie chancery side of the docket. The statute, with all its proceedings, is a law unto itself, sui generis, and may best be denominated a chancery proceeding, quasi in rem.' § 10. If a lien is defeated, suit fails. — In the trial of cases arising under this statute, as between owners and lien claimants, there are but two questions ; whether or not there is a lien ; if so, for what amount. The owner cannot, by offsets, cpunterclaims, or damages arising out of the very contract under which the liens are claimed, recover any judgment against the claimant, even if he defeats the claim for lien, or proves such to be far in excess thereof. For any claim of his own, exceeding that which the lien claimant asserts and against such lien claimant, whether for damages undep that contract, for defective or delayed performance, or overpay- ment, or of whatever nature, that owner must resort to another action at law. Such claims cannot be adjudicated in a trial under this statute.' All he can be allowed to do in the proceeding to en- force the lien is to defeat the claim to a lien; to utilize his own claims as matters of defense, and for that purpose, and to that ex- tent only. Nor, on the other hand, can the lien claimant recover any judgment unless his lien be established. If his lien on the property be defeated by reason of non-compliance with some statutory re- quirement, or divested by sale of the property under a prior njort- ' Sec. 14, act 1874, as amended; Wing v. Carr, 86 111. 347. ' Sees. 8, 10, act 1874, as amended; Kimball v. Cook, 1 Gilm. 433; Shaeffev v. Weed, 8 id. 511; Kelly v. Chapman, 13 111. 530; Ross v. Derr, 18 id. 245; Mor- rison T. Stewart, 34id. 24; Sutherland v. Ryerson, 24 id. 518; Raymond v. Ewing, 26 id. 829; ^^. P. Church v. Jevne, 33 id. 314; Lomax v: Dore. 45 id. 379; Croskey T. N. W. Mfg. Co., 48 id. 481; Clark v. Boyle. 51 id. 104; Dunphy v. Riddle, 86 id. 22; Paddock v. Stout, 121 id. 571; Franklin Svgs. Bank t. Taylor, 131 id. 876. 8 McCarthy v. Neu, 93 111. 455; Green v. Sprague, 120 id. 416 ; adv., ISBradw. 476; O'Brien v. Graham, 33 App. 546. Theory — Nature — CoNSTRUCTioisr. 7 gage, there can be no judgment save for the dismissal of the suit. The fact that the claimant is entitled to a judgment at law for his debt does not warrant a judgment for that debt when his claim is prosecuted under this act." If the owner defeats the lien, whether sued jointly with the principal contractor before a justice of the peace, or other court, or alone, to enforce collection of the debt by enforcement of the lien, he defeats the action, regardless of the justice of the claim, or the right of the plaintiff to recover thereon at law." On both sides the action is narrowed to the limit of lien, or no lien. The decree must be upon tlie lien as a basis, or there must be no affirmative decree at all.' The difference between the rights conferred upon owner and lien claimant being, that, if the owner defeats the lien by reason of his claims as proved being in excess of that of his adversary, he can recover no judgment for such excess ;' the claimant establishing his lien, if an original con- tractor, is awarded a judgment for any deficiency in the amount decreed him that the proceeds of the sale of the property fail to satisfy ;' if a sub-contractor or sub-claimant, the same, if the owner's payment to the principal contractor be in violation of his rights as the statute prescribes ;* or if he sue the owner and contractor jointly by common-law action f which judgment is collectible only by general execution, as in other cases.' § 11. Lien covers owner's interest in land. — While this lien applies solely to real estate, it covers completely the debtor's interest therein, whatever that interest may be, legal or equitable ; extends to an estate in fee, for life ;' for years, or any other estate, or any right of redemption or other interest, which such owner may have in the lot or land at the time of making the contract.' ' Green v. Sprague, 130 111. 416; Martin v. Swift, id. 488; O'Brien v. Gra- liam, 33 App. 546. « Quinn y. Allen, 85 111. 89. * 2 Green v. Sprague, 130 111. 416; Martin v. Swift, id. 488; O'Brien v. Gra- iam, 33 App. 546; sec. 25, act 1874, as amended; Bouton v. McDonough Co., 84 111. 384; Baptist Church v. Andrews, 87 id. 172; sec. 25, act 1871, as amended. * Sec. 29, act 1874, as amended. ' Sec. 37, act 1874, as amended. * Sees. 37-38, act 1874, as amended; Baptist Church v. Andrews, 87 III. 172. ' Osgood V. Pacey, 23 App. 116. The error of the syllabus of this decision has crept into the digest. It does not decide that there is no lien under contract with a tenant for life, but that the owner's property is not liable where such tenant made the contract; that the owner's offer to allow certain $100 due on rent, if collected, to be paid the mechanic, was no ratification, for that rent was not his to offer. He had no interest in it, it was the property of the life tenant. This suit was not against the tenant for life, but owner, and the decree against him in favor of the mechanic was reversed. Had the mechanic's suit been against the tenant for life it would doubtless have been successful. * Sees. 1, 2, act 1874, as amended; Turney v. Saunders. 4 Scam. 537; Garrett v. Stevenson, 8 Gilm. 261; Steigleman v. McBride, 17 111. 300; Donaldson v. 8 Mechak-ic's Lien Law. § 12. Except tenancy at sufferance. — Tenancy at sufferance, alone, fails to support a lien. Any alienation or incumbrance, per se, puts an end to such tenancy, and as this lien extends only to the interest of the owner, the termination of that interest termi- nates the lien.' § 13. Extends to after-acquired interest. — It extends to any interest of the owner acquired subsequent to the contract, as the husband's estate in the wife's realty, where he alone made the eon- tract, and her death subsequent thereto vests such estate in him, or he frees the land from lien of a prior incumbrance by its pay- ment and discharge, or perfects his title under executory contract and procures a deed for the property." § 14. Extends to wliole tract of land used for common pur- poses. — It extends over not merely the ground that the building stands on, but the whole lot as platted, or the entire tract of land used for one common purpose, as a tract of four hundred acres used for stock yards,' or several quarter sections used by a coal company, not simply the quarter section upon which the machinery was placed.* It may thus extend from a city lot fifteen by fifty feet to a section or more of land. "Where two persons jointly owned two tracts, one of eighty acres, one of twenty-two and one-half acres, each living on the respective tracts, the operation of the lien was confined to the interest of the party in the twenty-two and one-half acres who lived on that par- ticular tract and contracted for the improvement thereon.' The area of the ground thus depends upon its defined boundaries, or use for one common and distinct business by the owner contracting for the improvement. . § 15. Judicial notice taken that lots in different sections are different tracts. — But where the property had been subdivided into lots, though used as a farm, and the improvements were on a farm-house and barn, the court took judicial notice that the diflPer- ent lots being in different sections, were different tracts of land, held, that the lot alone on which the building was situated could be Holmes, 23 id. 83; Phillips v. Stone, 25 id. 67; Stephens v. Holmes, 64 id. 336; Canisius v. Merrill, 65 id. 67; Dobschuetz v. HoUlday, 83 id. 371; Reed v. Boyd, 84 id. 66; Belanger v. Hersey, 90 id. 70; Paulsen v. Man.ske, 126 id. 7S; 24 App. 95; Chisholm v. Williams, 138 111. 115; Chisholm v. Randolph, 21 App. 312; Portones v. Badenocb, 132 111. 377; Portones v. Holmes, 33 App. 312. ■ Proctor V. To-b;s, 115 111. 138. ' MoCarty v. Carter, 49 111. 53: Phoenix M. L. Co. v. Batchen, 6 Bradw. 631. s Nat'l Stock Yards Co. v. O'Reilly, 85 111. 546. ■• Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 111. 627; 38 App. 371. « Woodburn v. GifEord, 66 111. 285. Theory — Nature — Construction. 9 sold to satisfy the lien, and that a sale of the entire body compris- ing all the lots was erroneons.' The point, however, was not raised in this case that the entire premises were used for a common pur- pose — ^the improvement being as necessary for that purpose as machinery for coal mining would be for a tract of many quarter sections devoted to coal business. On the other hand, the statute recognizes the difference between the expressions "lot," or "piece" and " tract " of land.' If the improvement be on property subdi- vided into lots, then in order that the lien shall extend to all, there must be in the contract sufficient to apply such improvement to the body of land as a whole, or the fact must appear that the lots are, or are to be impr0|Ved as an entirety ; that is, the improvement for their use as^ai unit and for a common purpose that applies to and covers all, must be properly averred and proved.' § 16. There is no lien against State, county or municipality, but there is against public buildings not so owned or con- trolled. — The lien does not attach to public property, as a court- house or school-house, nor for labor or material for sewers, side- walks or other public improvements.' But where the property is not paid for by the State, and is not the property of the State, ^ county or municipality, but is an eleemosynary corporation and public, as a normal school that any one may attend, but whose charter the State has no control over, the lien attaches.' §17. Lien against homestead. — The homestead is not ex- empted from its grip, but dower is ; the widow can claim her dower,, not only in the land, but also in the improvements made thereon, and in both her interest takes precedence of the lienholder." The •chivalry and humanity of both the common law, from which the right of dower descends, and statutory enactment, permits dower to be divested only by the wife's own act in proper form, and extends- it to whatever improvements her husband makes on his realty, whether he pays for them or not. Even if she be made a party to proceedings to enforce a mechanic's lien, is duly summoned and de- faulted, no judgment can be taken that will affect her dower interest.' It was held where a mechanic's lien attached prior to the execution ' Van Lone v. Whittemore, 19 Bradw. 447. '' Sec. 1, act 1874, as amended. 3 Seller v. Schaefer, 40 App. 74. * Thomas v. Urbana School District, 71 111. 383; Thomas v. Industrial Univer- sity, id. 310; Board of Education - Neidenburger, 78 id. 58; Bouton v. McDon- ough County, 84 id. 384; Quinn v. Allen, 85 id. 39. ° Board of Education v. Greenebaum, 39 111. 610. « Shaeffer v. Weed, 8 Qilm. 511; Gove v. Gather, 33 111. 634. ' Gove V. Gather, 33 111. 684. 10 Mechanic's Lien Law. of a trust deed, or mortgage in which the wife joined and released her dower, that a sale under a decree to enforce the' mechanic's lien extinguished the title under such trust deed or mortgage, and the dower which was released only for the purpose of the trust deed or mortgage was revived against the purchaser under the decree in the mechanic's lieu case.' § 18. Statute liberally construed on cases within it. — This lien is enforceable only in the cases and upon the conditions prescribed by the statute,' is entirely the creation of the statute, and is controlled absolutely by the provisions, requirements and condi- tions of the law which created it.^ It confers extraordinary privi- leges, and it is not proper to stigmatize as a burden, or unreasonable or harsh, the requisition of strict compliance with' each and every provision of the statute susceptible of working such hurtful prefer- ence to others, whose rights are of equal sanctity, the coupling with the conference of these privileges, the exaction of strictly following the methods prescribed for obtaining, securing, holding and enforc- ing them. While no construction should be adopted that will defeat the object of the statute,* and that construction must be strict in re- quiring compliance with all its provisions,' it must be liberally con- strued in cases falling clearly within its provisions." § 19. Statute strictly construed in bringing case within it. — It is not extended to cases falling within the reason and spirit, but not provided for by the language of the statute. The letter of the law limits its action.' The court cannot extend the privileges of the act beyond its terms as to party or place.' Prior and subsequent incum- brancers and creditors were relieved from the onus of the lien, in case the claimant did not prosecute his rights within a limited period, long before a hona fide and innocent purchaser was put upon the same footing, accorded the same protection by being named in the 1 Gove V. Gather, 23 111. 634. ' Haines v. ChandlBr, 20 App. 400. a Swift V. Martin, 20 Bradw. 515; 37 id. 117; Martin v. Swift, 130 111. 488. « Stout V. Sower, 33 App. 65; McDonald v. Roseugarten, 85 id. 71; 184 111. 126. 5 CoOk V. Heald, 31 111. 435; Senior v. Brebnor, 33 id. 353; McLurken v. Logan, 23 id. 77; Brady v. Anderson, 34 id. Ill; Roberts v. Gates, 64 id. 374; Hunting- ton V. Barton, id. 502; Canisius v. Merrill, 65 id. 67; Bryan v. Whitford, 66 id. 33; Growl v. Nagle, 86 id. 4.S7; Belangerv. Hersey, 90 id. 70; Butler & McCracken T. Gain, 128 id. 33; Kankakee Goal Co. v. Grane Bros. Mfg. Go., id. 637; McDon- ald V. Rosengarten, 134 id. 136; Euggles v. Blank, 15 Bradw. 436; Boals v. In- -trup 40 App. 62; Seller v. Scbaefer, id. 74. 6 Pbillips V. Stone, 25 111. 67. ' Wetlierell v. Ohlendorff, 61 111. 283; Stephens v. Holmes, 64 id. 336; Eoth- bergej v. Dupuy, id. 453; Garney v. Tully, 74 id. 375. 8 3rady v. Anderson, 34 111. 111. THEpBT — Nature — Consteuction. 11 statute.' Nor was there any right of redemption from judicial sales in enforcement of these liens, until the statute relating thereto ex- pressly allowed it.' The act of 1845 gave a lien to the original contractor for erecting or repairing a building. The act of 1869 extended the lien to sub- contractors for altering, beautifying and ornamenting it. Under this the court held, that an original contractor had no lien for alter- ing, beautifying, or ornamenting a building already erected, and not needing repairs from decay and accident.' Here the original con- tractor was put to the ridiculous and absurd necessity of subletting ench contract, however small and trifling, to secure his lien. Yet, this being the legislature's work, the court's findings under the law were correct. There is no such absurdity in the present statute,* but the principle is the same ; it cannot be extended to cases falling within the spirit, but not provided for by the language of the statute. § 20. Must be within language of statute, spirit will not prevail. — He who seeks the benefit of this act must ground his claim, not on the merit of his work, the worth of his material, the justice of his debt, but show by contract, conduct of claim, plead- ing and proof that he comes clearly and unmistakably within the provisions of the statute, and in strict conformity to each and every one of those provisions, invokes its remedial agency.' None of its requisitions, deemed insignificant, or unreasonably exacting can be slighted or disregarded." The necessity of their uniform observ- ance is absolute ; not one will the court regard' more technical, less binding than another ; non-compliance with any directed duty proves fatal to the claimant's case. Where the interests of only the origi- nal parties — the owner and principal contractor — are involved, courts have indulged less critical construction, greater liberality in methods of procedure to enforce payment, but where the interests of third parties are touched, they move with a more cautious tread, and enforce a stricter construction.' ' Amendment, 1879; Dunphy v. Riddle, 86 111. 33. 5 Act March 30, 1869; West v. Flamming, 18 111. 348; Armsby v. People, 20 id. 155; Link v. Architectural Iron Works, 24 id. 551; Claycomb v. Cecil, 27 id. 497; James v. Hambleton, 43 id. 308; Schmidt v. Williams, 89 id. 117. a Bryan v. Whitford, 66 111. 33. ^ The present statute uses the word "beautifying" in sec. 39, referring to sub-contractors, and does not use it in sec. 1 referring to original contractors. It is used in conjunction with ornamenting, and is included in that term. To avoid controversy, there ought to be an amendment making this verbiage of both sections the same. ' Notes, sees. 18-19. « Carney v. Tully, 74 111. 375. ' Kimball v. Cook, 1 Gilm. 433; Nibbe v. Brauhn, 24 111. 268. 13 Mechanic's Lien Law. § 21. Every necessary step to perfect lien must be shown. — In all cases it is held, that every statutory step necessary for the cre- ation, maintenance and enforcement of the lien must not only be taken, but affirmatively shown by every claimant of one, whether he be principal or subordinate contractor, laborer, materialman, archi- tect, superintendent, .or other person.' § 22. Creditor defined. — The term " creditor " in this act does not mean or refer to creditors at large, but to those who by contract have a lien for labor or material under it.' It is con- fined to these special lien claimants, save in the limitation of four months for filing claims, which refers to general creditors, not to these.' Incumbrancer. — The term " incumbrancer " means and refers to one who has alien by trust deed, mortgage, judgment, or otherwise, existing at the time of the rendition of the lien claimant' s judg- ment, whether the same were created prior, or subsequent to the making of the contract under which he seeks to enforce his lien.' General creditors who prove claims against a decedent's estate are regarded as judgment creditors.* § 23. Must be acquired under statute in force wlien contract is made. — The right of the lien is determined by the statute in force when the contract is made,' its manner of enforcement by the statute in force when the suit is brought." There is no vested right in- a remedy. The legislature may change the mode of enforcing rights, and the new law will govern as to proceedings instituted after it goes into effect, no matter when the right sought to be enforced accrued.' The act of 1869 provided that thereafter there should exist a right of redemption in cases of mechanic's liens. It was held that this could not be construed to affect a decree entered before the act went into effect, for a sale thereafter, which cut off the right of re- demption. Such a decree being proper at the time it was entered, 1 Shaeffer v. Weed, 3 Gilm. 511; note 5, § 18. 2 Kimball v. Cook, 1 Gilm. 423; Shaeffer v. Weed, 8 id. 511. 2 Sec. 28, act 1874, as amended; Maxwell v. Koeritz, 35 App. 800. * Reitz V. Coyer, 88 111. 28. ' Berkowsky v. Sable, 43 App. 410; Hughes v. Eussell, id. 430. ^ Turney v. Saunders, 4 Scam. 587; Garrett v. Stevenson, 3 Gilm. 361; Knight v. Begole, 56 111. 132; Arbuckle v. I. M. R. R., 81 id. 429; Templeton v. Home, 83 id. 491 ; Reitz v. Coyer, 83 id. 28; Schmidt v. Williams, 89 id. 117; McDonald v. Rosengarteil, 134 id. 126; 35 App. 71; Barton v. Steinmetz, 37 id. 141; Berkowsky V. Sable, 43 id. 410; Hughes v. Russell, id. 430. ' Kinney v. Sherman, 38 III. 530; Knight v. Begole, 56 id. 122; Templeton v. Home, 83 id. 491. Theory — Nature — CoifSTRUCTiON. 13 would not, upon the act going into operation before the time fixed for the sale of the property, thereby become erroneous.' The act of 1839-40 repealed the previous law, but provided that rights acquired and liabilities incurred under the previous law should not be affected by such repeal. It was held that a lien growing out of a contract entered into before the passage of the later act, but not completed until after it took effect, should be prosecuted under the new act." § 24. Power of legislature over contracts. — A statute cannot affect a contract so as to make a new contract for the parties entirely different in its character, as by making it a lien on land when it was none when the contract' was made. The legislature may deal with remedies, but not with contracts which parties liave voluutarily made. Courts may relieve from their hardships, or enforce them ; the legislature can do neither.' § 25. Whole statute construed together. — The entire act must be considered and construed as a whole. If any part of the statute be intricate, obscure, or doubtful, or apparently in conflict with another part, the proper, way to discover the intention is to consider the other parts of the act, for the words and meaning of one part of a statute frequently lead to the sense of another, and in the construc- tion of one part of the statute every other part ought to be taken into consideration.* In further detail these general principles will be enlarged upon hereafter. ' Knight V. Begole, 56 111. 123. ' Turney v. Saunders, 4 Scam. 527. » Kinney v. Sherman, 38 111. 520. ■« Biggs v. Clapp, 74 111. 335; Chicago S. D. & B. Co. v. Shaw, 44 App. 618. CHAPTER II. PERSONS ENTITLED TO LIEN. Section 26. Only persons named are entitled to lien. 27. Original contractors. 28. Sub- contractors. 29. Sub-sub-contractors no lien. Where fund is in court a sub-sub-contractor might be paid from it. 30. Each must take the steps designated by statute. 31. Sub-contractor's lieu depends on original contractor's contract. § 26. Only persons named are entitled to lien. — Only those persons named, and in the character named ; not those coming within its spirit, are entitled to the benefit of this statute, nor does the work done in the spirit of the act fare any better.' It is the letter of the law that controls the persons as well as the class and character of work entitled to its protection. §27. Original contractors. — There are two classes, and only two, to whom the privileges of the act are extended. The first class comprises : 1. Any one who contracts with the owner for the entire building or work : — the principal contractor. 2. Any one who furnishes material to the owner. 3. Any one who labors for the owner. 4. Any architect, or superintendent, who furnishes service aa architect, or as superintendent to the owner, when his service is in accordance with the- provisions of thei statute and pursuant to the purpose of the original contract. ' In brief, the first class embraces those who, pursuant to the statute and the contract, deal directly with the owner — all coming under the head of original contractors." § 28. Sub-contractors. — The second class of persons entitled to a , lien are those who, pursuant to the original contract and the statute — 1. Make a contract for a special part of the work with the original contractor. 2. Furnish materials to the original contractor. 3. Do mechanical or common labor for the original contractor. > Sec. 18, 19. ' Sec. 1, act 1874, as amended. Peesons Entitled to Lien. 15 Those, in brief, who, pursuant to the purpose of the original con- . tract, and in accordance with the statute, deal directly with the origi- nal contractor, all coming under the head of sub- con tractors.' § 29. Sub-sub-contractor no lien. — The statute reaches no further than this class. No one who furnishes material or renders services to, or labors for a sub-contractor has a lien.'' Where the statute uses the words "mechanic, laborer," it refers to the skilled or unskilled laborer for the owner or original contractor, not for tliose of the sub contractor. If, however, suits are brought to enforce the lien and the court acquires jurisdiction of the fund coming to the sub-contractor, his sub-contractor or laborer, or whosoever has furnished him material, can make himself a party, and have what is due paid him out of such fund.= § 30. Each must take the steps designated by statute. — Each class must pursue its distinct, designated steps to first attach the lien, thereafter fix and establisli that inchoate, imperfect lien by an equally distinct method. Their roads to the result — collection of what is due them — are as different and divergent in some re- spects as though a separate statute governed each.* From the point where a petition is to be filed to enforce the lien on the property improved, the materialman, architect, superintendent, original con- tractor, sub-contractor, skilled and unskilled laborer, or other person, must proceed exactly as the statute provides. § 31. Sub-contractor's lien depends on original contractor's contract. — The sub-claimant's lien depends, primarily, upon the validity, existence and character of the principal contract. If there were no contract, or a contract with one against whom the law allows no lien, the sub-claimant has none, no matter what the merit of justice of his claim may be; and in such case he cannot success- fully maintain an action against the owner, either to enforce that asserted lien, or, at law, to collect his debt, against that owner alone, or against him and the principal contractor jointly.' Of primary importance to all are the necessary requisites with respect to that original contract, ' Sec. 29, act 1874, as amended. " Rothberger v. Dupuy, 64 111. 452; Ahern v. Evans, 66 id. 125; Newhall v. Kastens, 70 id. 156; Smitli Bridge Co. v. L. N. A. & St. L. R. R. Co., 72 id. 506; C. & St. L. E. R. Co. V. Watson, 85 id. 531; Berkowsky v. Sable, 43 App. 410. s Newhall v. Kastens, 70 111. 156. * Maxwell v. Koeritz, 35 App. 300. » Quinn v. Allen, 85 111. 89; Bouton v. MoDonough County, 84 id. 384. CHAPTER III. NECESSARY REQUISITES OF AN ORIGINAL CONTRACTOR'S LIEN. Section 33. Requisites of original contractor's contract. 33. Contractor mustperform his contract. Owner entitled to benefit of contract. 34. No contract, no lien. 35. Minority, feffect on lien. 36. Contract must be a valid one. 37. Ultra mres. (Beyond corporate authority.) 38. Ultra vires of public corporation. Pretended agent gives no lien. 39. Contract may be made out of State. Lien if materials used in this State. 40. Payments in property. 41. Fraudulent representations of owner. Quantum meruit, in case of. Fraud will not confer lien; may change price 42. Architects. No lien for settlements with contractors. 'No lien for whole price where part of contract is not within statute. 43. Powers and duties of architect. 44. Powers and duties of superintendent. 45. No lien where no contract with owner. Equitable lien (not a mechanic lien) where party builds on land under mistaken claim of title, or is misled by owner. 46. No lien where sale is on personal credit. No lien to one guaranteeing payment. No lien where one building has no title. 47. Removal of materials, Severance of improvement. 48. Owners. Possession not evidence of authority to build. No lien on tenancy at sufferance. 49. Agency. Owner liable though agency is not disclosed. 50. Declarations of agent do not prove agency. Fraud between seller and agent, only market value recoverable. 51. Ratification of agency. , Must be on full knowledge. Not implied from accepting improvement. Authority to build does not imply authority to build on credit. Authority to care for property does not imply authority to make extensive improvements. Specific authorized acts of agent do not infer further agency. Neoessakt Eequisites 01' Original Contractor's Lien. 17 Section 52. Owner authorizing improvement, lien attaches. 53. Three classes of owners whose contract will not sustain lien. 1. In trust estates specially limited. 2. Contract made after foreclosure begun. 8. Contract of sale. 64. Except where contract of sale authorized improvement. 55. Contract made with purchaser under contract of sale will sustain lien subject to vendor's rights. 56. Trustee with power to build consenting to improvement by cestui que trust confers lien. 57. Ownership by estoppel sustains lien. 58. Husband improving wife's land. If on his personal credit, no lien. 59. If wife misleads contractor, lien attaches. 60. Estoppel in general. 61. Improvement must be with owner's consent. Improvement must be before rescission of contract. 63. Landlord and tenant. Surrender will not forfeit lien. Forfeiture of lease vpill forfeit lien. If lien attaches before forfeiture, lien claimant may pay rent and foreclose lien. • ' 63. Lessor authorizing imprdvements, lien on property .■ If improvements become lessor's, lien on property. Lien attaches io leasehold for machinery which tenant may re- move. Provision to purchase improvements not' covenant running with land, and lien does not continue as against grantee. 64. No lirin for improvements bj insurance company.' - ■' , Nor by administrator. *- But for improvements by executor, if empowered. .' ' 65. Contractor buying as agent: if he pays, no lien. - '- 66. Where one of several owners contracts, his interest bound. 67. Joint and Co-tenants no lien as against each other. ' .' ■ 68. No lien for party-wall without consent of adjacent owner. 69. Corporation's contract sustain lien. ' .- 70. Contract must be to iihprove particular lot. .' '■ 71 . No lien for material on open account without reference to particu- lar lot.' . 72. Does not extend to adjacent lot of same owner, even ii'Sinclosed. Judicial notice taken of different townships. 73. In block of buildings, different roofs make different lieiis. Common roof makes the lieu common! Contract may be entire, but account mus*^ be kept against separate buildings. 74. If. more than one building on same lot or tract, one lien for all. 75. Where materials removed from one lot to another of owner, lieu on each for amount on eaeh. 76. If tract used for common purpose, or a number of lofa-for common purpose, lien covers all. 3 18 Mechanic's Lien Law. Section 77. Contract need not be for definite amount of material, nor provide for lien, nor describe property. 78. Less particularity of description of property necessary where house or building under process of construction. 79. Appurtenances must be on the same lot or tract. Cases of liens for appurtenances. Lien for furnaces. No lieu for stoves. No lien for lightning rods. Lien for machinery where part of system attached to land, 80. Contract must be according to statute. Earlier acts applied solely to express contracts. Requisites of such contracts. 81. Change by act of 1861, allowing liens under implied contracts. 83. Present law; limitation as to term of contracts, express, implied, or partly express and partly implied. 83. Terms of contract as made decide lien. 84. Lien depends on original contract, not on changes made in it. 85. Express contract, example of. 86. Extension of time on condition; without condition. Days of grace on one year note do not vitiate lien of. 87. Not necessary to fix a certain date for completion or payment. But times must be within periods named by statute. Working test is date of completion. 88. Must do one of two things: 1. Make express contract limiting time of completion according to statute. 2. Or complete work within a year. 89. No time stated for performj),nce or payment. Cases cited. 90. Law requires only request by owner and compliance within year. 91. Where contract express, except as to time of completion, lien if completed in year. 92. Where working test fixes date of completion, date of test controls lien. 93. Importance of distinction between express and implied contract. 94. Character of labor or material must be such as statute provides for. No lien for hire of plumbers' license, etc. No lien for part and lump price, no lien for any. 95. Contract must be performed, or non- performance excused. I Distinction between contractor for work and for materia} 96. No lien for work unless done. No work done or no material furnished, no lien. No lien for work done after rescission of contract. If contractor offers to remedy defects, and is prevented, he has lien. 97. If contract for entire work, no lien if property burned or destroyed. Cannot apportion lien on entire contract. If to do only part of the work, he has lien in case of destruction. 98. Non-payment excuses abandonment, and lien for what done. , Action on quantum meruit must be under sec. 11. Necessary Requisites of Oeigiital Contractor's Lien. 19 Section 99. Where contractor is delayed, he has lien for extra'expense: 100. Extra work provided for by contract is part of same. 101. Promise to pay increased price not binding without consideration. 102. Allowing work after time provided for completion waives forfeiture. 103. Architects' certificates. Damages for delay. Form must correspond with contract. Fraud or mistake vitiates certificate. Plans, etc., competent to show fraud or mistake. Death of one of firm of architects terminates authority. Unless all recognize the survivor. Breacli of contract by owner, no certificate necessary. Destruction of premises, no certificate necessary. 104. Damages, where work not done according to contract, rule of. Damages allowed for services of owner. Damages for delay waived unless claimed at the time. Purchaser can recoup damages same as vendor to defeat lien. 105. Materialman no lien unless materials used. (See sec 107.) 106. Architect no lien unless building erected. 107. Materialman no lien unless material used. (See sec. 105.) 108. Right of materialman to recover on furnishing material, whether used or not, and discussion of cases in regard thereto. § 32. Requisites of original contractor's contract.— The nec- essary requisites to establish a lien in favor of an original contractor are : 1. A valid contract. a. This contract must be made with the owner of a lot, piece, or tract of land. b. This contract must be made to build, alter, repair, or ornament a house or other building or appurtenance thereto on that particular lot, piece or tract of land, or upon some street or alley and con- nected with a building or appurtenance on such lot or tract of land. c. This contract must be made strictly in accordance with section 3 of the statute. d. This contract must be performed, or its non performance ex- cused according to law. , Should the original contract lack any of these requisites, the origi- nal contractor lias no lien, however just and meritorious in itself his claims may be. § 33. Contractor must perform his contract. — The contract and the statute are kept in common and equal view by the courts in deciding the claims of all concerned. Whatever is done must be done pursuant to the purposes of that contract with the same strict fidelity as in accordance with, the pro- 26 Mechanic's Lien Law. visions of the'statute. The lien is created by the statute, but being dependent upon the contract, owes to each a common fealty. Its terms cannot be changed or varied to suit the interests of any one who labors or furnishes materials for the work doue under it. The owner under all circumstances, save where his own fraud or omission of personal or statutory duty impairs it, is entitled to the benefit of that contract. Its terms limit the extent, manner and form of his liability and bound the rights of all others' claims.' The thread of its controlling obligations runs througli the whole web and woof of subsequent action, until upon naked ground a building is erected to completion for use or residence, or such is altered or repaired for these purposes, or ornamented to enjoy, beautified to delight. The first legal as well as prudential obligation of all who deal With landed improvement is to ascertain what the contract is, whether or not what the parties to it propose to do is within the limits of the con- tract and the statute ; what position they occupy jn doing what they are asked to do ; whether they occupy positions as original contract- ors, or sub-contractors, or are farther removed from the owner, and SO, whether or not they are safe in the undertaking, before they incur the risk. It is not the province of the legislature or courts to supply pru- dence, or remedy the lack of its ordinary exercise, and this law knows and helps only those who, pursuant to its provisions and the p'urposes of the contract, safely conduct their business operations. Their confidence or credulity cannot carry their meritorious claims into the contract's obligations, or the law's pirotection, if beyond the fixed boundaries of either. , 1 Mehrle v. Dunne, 75 111. 339; Whitcomb v. Eustace, 6 Bradw. 574. Necessary Eequisites of Original Contractor's Lien. 31 § 34. No contract, no lien. — As .before stated, there must be an . original, valid contract. It is not the furnishing of materials and labor alone that gives the lien, but the contract and furnishing labor and materials under it.' If there be no contract there is no lien." Where one contlacted to furnish materials for a building, and during the progress of the work took in a partner, and the firm, on firm account, continued to iurnish the balance of the materials contracted for, it was held, tiiat the firm tjould not sustain a lien because no new contract was made by it therefor." § 35. Minority, effect on lien, — Under a contract with parties incompetent to contract, as minors, and persons non compos mentis, there is no lien. But minority is both sword and shield. The minor can enforce a lien for his labor or materials, while he escapes liability, if he pleads minority^ to those who do the same for him. It is his option to make the contract valid or void.' Nor will use of the property, receipt of its rents and profits after arrival at age constitute ratification of a' contract by one who was a minor when it was made." §36. Contract nrnst be a Talid one. — There is no lien if the contract be for an immoral purpose, contrary to public policy, without consideration, ot for work done prior to contract.* Nor is an owner's verbal promise to pay binding, if made after the work is done for, or materials delivered to his contractor." WhereH., on credit of the contractor, furnished materials to build G.'s house, the building was partly completed and abandoned by the contractor, and G. executed this agreement : " This is to certify that I hold myself responsible for all lumber and materials furnished by H., for the erection of store on Halsted St., in course of erection, and will pay all of our accounts for said stoi-e when the building is completed," it was held G. was liable only for the materials furnished after the date of, that agreement; that no consideration for the ma- terials furnished before that time was expressed, or existed ; that if there had been a consideratioii expressed it would not have created a lien for such materials, because furnished before the contract of G. was made.* ' Sutherland v. Ryerson, 34 111. 518; Kinney v. Sherman, 38 id. 530- Wendt v Martin, 89 id. 139. ' Roberts v. Gates, 64 id. 374; Wetherell v. Ohlendorff, 61 id. 383. ' McCarty v. Carter, 49 111. 53; Mathes v. Dobschuetz, 73 id. 438 4 Wetherell v. Ohlendorfi, 61 111. 883. • Tanquary v. Walker, 47 App. 431. ' 2i Mechanic's Lien Law. ' § 37. Ultra Tires. (Beyond corporate authority.) — So, if the contract bo ultra vires (beyond corporate anthority) the corpora- ^ tion making it cannot enforce a lien. A corporation whose charter only empowered it to manufacture and deal in lumber, or make and sell brick conld not hold a lien for labor performed in the construc- tion of a building, nor would" a contract made with members of a corporation who had no authority to bind it sustain a lien against the corporate property. A corporation is bound only by its corpo- rate acts done under corporate authority, not by the acts of its indi- vidual members.' § 38. Ultra Tires of public corporation. — With a pubhc cor- poration the rule is more stringent than with a private, the law hold- ing that whoever deals with persons purporting to represent a pub- lic corporation must know the scope of their authority.' Nor is there a lien if the contract be made with one who professes to, but in fact does not, have authority to bind the owner. § 39. Contract may be made out of State. — It does not matter if the contract be made out of this State, if the materials are to be deliv- ered, and the labor done in this State.^ It must possess all the elements of contracts generally as to capacity of parties, authority to contract, consideration, and is to be interpreted by the ordinary rules of law. It may be written or verbal, and needs no stipulation for a hen. § 40. Payments in property. — It need not be for payment in money. It is good if the owner is to pay all, or part, in property," and, if such be its terms, no different payment can be enforced by the sub-contractor, materialman, or other person. If the property be not delivered or conveyed, the price at which it was agreed to be taken becomes a money demand and that amount a lien on the im- , proved property.^ §41. Fraudulent representations of owner. — Fraud, as in any thing else, will avoid the terms of the contract, and enable the lien claimant, if he is entitled to a lien, to enforce it for the value of his materials or labor, regardless of the contract jjrice.* Thus, where a painter agreed to do certain work for a certain price upon the representations of the person 'for whom the work was to be done as to the amount and character of the work re- ' Bouton v. McDonough County, 84 111. 384; City of Chiiago y. Shober & Cat.- queville Lithographing Co., 6 Bradw. 560. 2 Gaty V. Casey, 15 111. 190; Paddock v. Stout, 121 id. 571: Stout v. Sower, 33 App. 65. s Welch V. Sherer, 93 111. 64; Barstow v. McLachlan, 99 id. 641. * Sec. 39, act 1874, as amended; Marline v. Nelson, 51 111. 433. Necessaky Eequisites of Okiginal Conteactoe's LiBif. 33 quired, and did not see it until after his employees had done it, he was awarded a lien for the actual value of the work done in excess of the price stated in the contract. But if after the contract, and before the work was done he had personally inspected the work and found it to be of a more expensive character than represented, it would have been his duty to have notified the party before doing it.' Fraud is not presumed ; it must be clearly proved to overthrow a contract's stated terms ; nor will it, under any circumstances, con- fer a lien. It only^afEects the aoaount of the lien. The claimant must have a lien under the contract, but fraud as to the terms of the contract may make it cover what his work is worth, regardless of the contract price. § 42. Architects. — The rights, duties and powers of no one connected with building operations are more generally misunder- stood than are those of architects and superintendents. They are as nluch original contractors as masons, carpenters or others who contract with the owner. Their contract, their employ-, ment equally distinct, and the same rules treated of hereafter as applicable to original eontractoi's are applicable to them. The statute gives them a lien ouly for their services as archi- tect or as superintendent," and none for settling with contractors, etc." For any services they may render not included under the special character of such professional employment they have no lien." If the charge for their services be a gross one, and include compensation for services not strictly architectural, not strictly within a superintendent's duties, there would be no lien in their favor for any thing.' For any services outside of a strictly profes- sional character they must keep a separate account, make a separate charge, and collect as any ordinary debt. § 43. Powers and duties of arcliitect. — The province of the architect is to draw the plans, specifications and details for the building, or improvement thereof, upon a particular lot or tract of land. He may be employed as both architect and superintendent, in which event he would have a right to a lien for a joint charge. As architect simply he has no power to let contracts, order material or labor, or in any way obligate either owner or contractor. He is not the agent of either, has nothing to do with any of the work out- side of his own for the owner. ' Sec. 39, act 1874, as amended; Martine v. Nelson, 51 111. 433. ' Sec. 1, act 1874, as amended. «^Adler v. World's Pastime Co., 136 111. 373; 36 App. 538. 34, , Mechakic's Lien Law. ,TJi0 owner, by written or verbal authority, may give him full ■-■ power to let contracts, supervise the work, enforce its performance according to the plans and specifications, or, in default of the con- tiractor so doing, have it done. As a rule, contracts are let upon condition that the work is to be d'oiie to the satisfaction or subject to the approval of the architect. * .In such case he becomes the absolute arbiter between owner. and contractor, his decision final and binding upon both, where honestly and understandingly made.' Whether the work be good or bad, in such case, if he is satisfied, disputes must end.'' His decision can be overruled only when made through fraud or mistake. To impeach that decision, the owner or contractor who attacks it must prove clearly and conclusively, either that he wilfully did not exercise an honest judgment, or was so mistaken in the facts that he did not exercise his real judgment,^ such judgment as he would have exercised upon a correct under- standing of the matters passed upon. Where so empowered he acts in a professional-judicial capacity. It becomes his duty to withhold certificates from the contractor whose work or materials he deems not in accordance with the plans, specifications and contract, and if occasion requires to have it done in the time and of the quality and character called for, and his acts under sneh power are binding upon all the parties concerned. Where either he or the superintendent orders work done or ma- terials furnished, those who do either must learn from the owner or the contract whether or not lie has authority to do so, or look to him personally for payment for what he orders. § 44. Powers and duties of superintendent. — The province of the superintendent is to give constant supervision as the work pro- gresses, and see that it is done as the plans, specifications and con- tract call for. His duties and powers are wholly supervisorv. Ho has authority to stop work or refuse to accept materials not of the standard required, but, unless specially authorized, no authority to contract for either or obligate owner or contractor for their payment. When the owner empowers either to supervise, control and direct the work, let contracts, procure proper materials, or the contractor accepts a contract wherein they are so empowered, their authority is superior to both owner and contractor. ' Downey V. O'Donnell, 86 111. 49; 93 id. o-i9; Ewiua: v. Fiedler. 30 App. 202; see, also, Wolf v. Michanlis, JT id. 336; Michaelis v. Wolf, 38 id. 645; Davidson V. Provost, 35 id. 136: Watrous v. Davies, id. 542. 2 McAuley v. Carter, 33 111. 53. Necbssaky Eequisites of Okigikal Conteaotok's Lies. 35' § 45. No lieu where no contract with owner. — This caatract must be made with the owner of a lot or tract of, land. There is no lien for materials furnished, or work done ou the credit of an original contractor only, or of one not the owner.' If a house be built upon an owner's lot, without his knowledge- or consent, it becomes his house, and the builder can neither enforce a lien for it, nor remove it. The law imposes no obligation upon sucli owner to pay for it,' or abstain from its use. It then becomes his, absolutely, clear from all claims of every one — whether the party who built it, or his (ireditors, and any interference therewith is as much a trespass as if the owner had built and paid for it.' The general rule is that improvements of a permanent character made upon real estate and attached thereto without the consent of the owner of the fee, by one having no title or interest, becomes a part of the realty and vests in the owner of the fee.' There is an equitable lien for improvements ; but only where made by a party under claim of title which turns out to be defective, or under some legaj mistake concerning his rights, or is induced to incur expendi- tures in that behalf through fraud or deception of the owner, but such equitable liens are not in the contemplation of this statute.' § 46. No lien where sale is on personal credit. — A., being un- willing to credit L,, sold lumber to 13. for L., and delivered it to L. on L.'s lot. Held, that A. had no lien, because he did not contract with, only delivered the lumber to the lot-owner. This case also decides that one who guarantees payment for material has no lien.* C sold lumber to K., who owned lots 1 and 2, and had them in- closed with lot 7, which he did not owt;, and on which he built. U. bought lots 1 and 2, and bouglit the house on lot 7 and moved it on to lot 2. C. brought suit to enforce his lien, and lost. The court held there was no lien on lot 7, because the contract was not made with the owner of it. There being no lien to start with, none could follow the house. Though imder a common inelosure, it was C.'s 'Sees. 1 and 2, act 1874. as amended; Dawson v. Harrington, 13 111. 300; Underbill v. Corwin, 15 id. 556; Burns v. Lane, 23 App. 504; Burkhart v. Keisig, 24 111. 530; Wetherell v. Ohlendorff, 61 id. 283; Woodbarn v. GifEord, 66 id. 285; Tracy v. Rogers, 69 id. 662; Mathes v. Dobschuetz, 73 id. 438; Strawn v. O'Hara, 80. id. 53; Wendt v. Martin, 89 id. 139; Proctor v. Tows, 115 id. 138; Paulsen v. Manske, 126 id. 73; Campbell v. Jaoobsou, 145 id. 389; Austin v. WoMer, 5 Bradw. 300; Little v. Vredenburg, 16 id, 189; Osgood v. Pacey, 23 App. 116; McGraw v. Storke, 44 App. 311. " Matties V. Dobschuetz, 72 111. 438. ' Williams v. Vanderbilt, 145 111. 238. " Euggles V. Blank, 15 Bradw. 436. 4 "26 Mechanic's Lien Law. duty to examine into the title of the property ; ani his failure to do so, and loss of lien in consequence, was his own fault.' Where a father in good circumstances built on his daughter's lot, slie knowing of and directing the work, no pretense of his acting as her agent, it was held thaj; there was no lien, because she, the owner, did not make the contract." § 47. Eemoyal of material. — It is also held that severance of the improvement from tjie land, unless wrongfully made by the party against whom the lien exists, or his privies, though the lien con- tinue against the land, converts the improvement into personalty and prevents the lien following it to a new location." However, if that new location belongs to the same owner, and the materials be removed to it under contract with him, there will be a lien thereon to the extent of the value of the labor and materials put upon it. If it does not belong to the same owner, but to an innocent and tona fide purchaser of the materials and improvement, the lion does not follow,' § 48. Owners. — By owner is meant, not only one who of record owns the fee-simple title, but who owns an estate for life, for years, or any other estate or right of redemption, or other interest which such owner may h'ave in the lot or land at the time of making the contract, to the extent of that right or interest.* The statute gives a lien to any person for any thing furnished by contract to the owner of any interest which becomes attached to the premises, and becomes the property of the owner as part of his in- terest.'' There is no lien on a lot or building in the temporary use of one who has it improved when it belongs to another ;' mere pos-- session is not evidence of authority to bind any interest but that of the possessor.' In order for a mechanic's lien to attach, the party with whom the contract is made must have some interest or estate in the premises on which the improvement is made or building erected. The possessor is the owner only to the extent of the in- terest he has, and that interest is what the mechanic's lito affects.s I UnderMll v. Cor win, 15 111. 056. •' Strawu V. O'Hara, 86 111. 53. 3 Steigleman v. McBride, 17 111. 800. * Sec. 2, act 1874, as amended; McCarty v. Carter, 49 111. 53; Portones v. Holmes, 33 App. 313; Portones v. Badenoch, 132 111. 377. '.Portones V. Badenoch, 182 111. 877. 6 Tracy v. Rogers. 69 111. 662. ' Baxter v. Hutchings, 49 111. 116. 8 Paulsen v. Manske, 136 111. 72; 24 App. 95. Necessary Eequisites of Original Contractor's Lien. 37 Thrive is no lien on a tenancy at sufEerance ;' nor is there a lieu where a building is erected on land without the owner's knowledge or consent, nor will his use of it, or receipt of its rents thereafter, ratify its unauthorized erection, or make him liable for it." § 49. Agency. — This contract, as any other/ may be made by the owner's agent.' Even if the agent does not mention or disclose the owner, but acts in his .own (the agent's) name, and the materials are delivered to, work done for the agent, the contract signed by the agent merely in his own name, the owner is liable, if the agency be proved, and the agent acted within the scope of his authority, unless the circum- stances show that an exclusive credit was given to the agent.* Where the husband contracted as agent of the wife, she had notice thereof, and gave her approval and consent, she and her property were bound by the contract.' Where the father made the contract in his own name for building on his daughter's land, but she was present, di- rected all that was done, promised to pay what was due, and did pay $1,300 toward the balance due, her land was held subject to the lien ; her conduct authority for, and her payment ratification of his agency.' § 50. Declarations of agent do not prove agency. — But where the fact of agency is in issue, the declarations of the agent, not made in the presence of the owner, and not approved by him thereafter, are iio proof of his agency, and it is improper for the court to admit evidence of such declarations.' And where the prices agreed to be paid by the agent are attacked by the owner on the ground of fraud and collusion between seller and agent, only the market value of the materials, labor or contract work can be recovered, instead of what was agreed to be paid. But such agreed price is ^rmayaCTe evi- dence of their value. § 51. Batiiication of agency. — Eatification of an agent's acts done without the owner's knowledge, or authority, will relate back to and confirm such acts from the time done, and bind the owner as fully as if authorized beforehand, but such ratification must be on the full knowledge by the owner of all the facts, and if misled or mistaken as to any such facts, such ratification is held not to have 1 Proctor V. tows, 115 111. 138. ' Burns v. Lane. 23 App. 504; McCarty v. Carter, 49 III. 53. = Schwartz, V. Saunders, 46 111. 18; Greenleaf v. Beebe, 80 id. 530. * Paulsen V. Manske, 34 App. 95; id., 136 lib 73. ' Greenleaf v. Beebe, 80 111. 530. « Burns v. Lane, 33 App. 504. •> Proctor V. Tows, 115 111. 138; Osgood v. Pacey, 33 App. 116. 38 Mechanic's Libn Law. been .made, is not binding.' Ratification is not to be implied from the use of the property, or from collecting its rents.' Though th^ agent purchase the property for the owner, and pcciipy it, this does not give itwthority to' improve it.' Nor does authority to build im- ply authority to build on credit, where the agent is furnished a specific amount with which to build.' Nor will a general agency to care for prc^erty sustain a lien far;extensive improvements." The party doing work or furnishing materials, knowing the owner, should inquire as to the agent's authority before he incurs a risk. The title being of record, he should ascertain the same and the extent of the authority of the agent before constructing.'- " The fact that the husband has acted as the wife's agent in some cases does not prove that in all he is her agent," nor does a party's agency in respect to one or more affairs prove the existence of a general agency. § 52. Owner authorizing improvement, lien attaches. — Where the owner authorizes another to improve his property, though not as his agent, such authority carries with it the statutory incident of the lien.* The owner of a lot entered into an agreement with P., whereby the latter was to erect certain buildings on a certain lot, those on a certain designated part of the lot to cost $5,846, in consideration of which the lot-owner was. to convey the remaining portion, being ninety-five feet, to P. The owner was to execute mortgages on the whole lot to raise money to enable P. to make the proposed improve- ment. It was held that P. had such an interest in the portion of the lot which was to be conveyed to him under this agreement as would authorize a mechanic's lien, that the lot-owner, having author^ ized P. to contract for the buildings, and having received the bene- fit of the improvements, could not have his property improved and escape the liability to the mechanics and materialmen, and it was subject to their liens." § 53. Three classes of owners whose contract will not sustain lien. — There are three classes of owners whose contracts will not sustain a lien : "'Proctor V. Tows, 115 111. 138.; see St. Louis Natl Stock Yards v. O'Reilly, 85 id. 546. 'Barns v. Lane; 23 App. 504; McOarty v. Carter, 49 111. 53; Baxter v. Hutch- ings, id. 116. 3 Franldin Savings Bank v. 'raylor, 131 III. 376. ■•Paulsen v. Manske, 126 111. 72; 34 App. 95; Henderson v. Connelly, 133 111. 98; 23 App. 601. 5 Paulsen v. Manske, 136 111. 72: 24 App. 95. Nbcessaet Eequisites of Okigistal Oonteactoe's Liek. 39 1. Wliere the property was c&nveyed to a tmstee to hold for the use and benefit of another — -the trust was an active one and not to exercise powers in Hefault of the cestui que trust performing cer- tain obligations — and the deed of conveyance creating such trust authorized the trustee to improve the property by adding to, alter- ing or removing buildings thereon, and to sell part to improve the remaining portion, but contained tiie clause, " Provided, always, there shall be no lien, incumbrance or charge created thereby on said premises," though the cestui que trust procured, and the trus- tee authorized the improvement, it was held that no such lien could be created therefor in contravention of this clause in the deed of conveyance.' As to whether or not such clause in a trust deed or mortgage given to secure ' the payment of purchase or loaned money or other indebtedness would bar the creation of a mechanic's lien has not been decided. No question of greater importance can be addressed to those who take security upon realty for purchase or loaned money, or other indebtedness. ' ■ There is no doubt but what the enforcement of such liens may result in the scaling of such debts secured by first mort- gage or trust deed, where the instrument of security contains no such clause, as will be hereafter shown. The majority, indeed al- most all instruments of such security contain no clause prohibiting such, liens, and the debts they secure are, in consequence, in peril- It is questionable, in view of the statute's provision as to incutn" brances," if such instrument can be so drawn as to make the security absolute and protect it from impairment by the owner's improve- ment of the property it covers. 2. A contract made, work done, or materials furnished after fore- closure proceedings are begun will not sustain a lien. ThC' pur- chaser under decree and sale takes the property free from claim of snch.liens, and the mortgagor or maker of a trust deed in such case, though in possession, is held not to be such an owner as can impose a lien upon the property.'' 3. The purchaser in possession under a recorded contract to con- vey on payment of the stated purchase-price, cannot create a lien to the prejudice of his vendor. Such vendor must be paid in full before the lien can attach to the property. His vendee cannot im- ' Franklin Savings Bank v.. Taylor, 131 111. 376. " Sec. 17, abt 1874, as amended. * Tracy V. Rogers.' 69 111. 662; Davis v. Conn. Mut.' L. Ins. Co., 84 id. 508; Green v. Sprague, 120 id. 416; adv., 18 App. 476. 30 Mechanic's Lien Law. pair his title or give the mechania. a better title than the vendee has.' The purchaser of such vendor's title, taking an assignment of the contract as well as an assignment of the notes given by such condi- tional purchaser, takes with the same rights as the original vendor." § 54. Except where contract of sale authorized improve- ment. — But where such contract authorizes the purchaser to build, it carries with such authority the statutory incident of the lien, the rule is different, and the purchaser is held to be such an owner as whose contract will sustain a lien against the vendor's and his own interest.' October 17, 1884, H. sold to S. a lot for $2,150, payable $75 cash, $30 per month on the first of each month from from Feb- ruary 1, 1885, until February 1, 1888, when the whole sum re- maining should become due. In case of failure to make pay- ments, H. was to have the right to forfeit the contract, provided S. should have four months in which to make good any delinquency in payment before any forfeiture or re-entry should, be made. H. also agreed when S. had expended $325 in the erection of a dwell- ing-house upon same, to advance S. as the progress of the building^ in his opinion, justified, $875 to aid in the completion the^reof. December 1, 1884, S. contracted with C. for certain work on .said house, who did such work. Puring progress, H. advanced S. $350, April 16, and $350, May 15, 1885. In July or August, work having stopped about June 1, and S. haying only paid the first $75, H. took possession and completed the house. C. filed his petition to enforce a lien for amount due and unpaid him. The court decreed in his favor, ordered the property sold, his claim paid first out of the proceeds and the purchase-money claim of H. next. On appeal decree confirmed, the court holding, that H. had the right to forfeit the contract on June 1, so far as S. was concerned ; but before the right of forfeiture accrued, the lien of 0. attached to the premises ; that no steps had been taken by H., by notice of forfeit- ure, or otherwise, to terminate the contract ; that the case differed from one wherein the vendor gave no authority to improve ; that in giving this authority, H. subjected his title to the property to the, 1 Wing V. Can, 86 111. 347; Hickox v. Greenwood, 94 Id. 266; Buggies v. Blank, 15 Bradw 436. 2 Wood V. Rawllngs, 76 III. 306; Haggles v. Blank, 15 Bradw. 436. 3 Henderson v. Connelly, 123 111. 98; 33 App. 601; Paulsen v. Manske, 24id.95; 136 m. 73. Nboessaet Requisites of Original Conteactob's Libit. 31 lien of the mechanio, and the decree properly gave that mechanic priority of payment.' § 55. Contract made with purchaser under contract of sale will sustain lien subject to vendor's rights. — The purchaser under a contract to convey has the right to improve the property, subject to the rights of his vendor. But the statute gives to the contractor a lien on that purchaser's interest at the date of the con- tract for the improvement. As between such vendor and purchaser, non-payment does not, of itself, work a forfeiture of the contract. The vendor can elect to enforce performance of the contract, sue for the promised payment. The contract is not forfeited until the vendor exercises his right and expressly declares it forfeited. And where a lien for improvement attaches prior tliereto, the rights of the contractor who held it must be regarded. So in the case of a contract to convey, with forfeiture in case of non-payment ; non-payment does not of itself terminate the con- tract, forfeit the title and leave the mechanic remedUess, who before such default put materials or labor into the improvement. He can pay the purchase-money, save the title and enforce his lien, if he see fit, or he can enforce a sale of the property, and the proceeds of the sale, in excess of what is due the vendor, must be paid to him.' The vendor in such cases must do some overt act — declare the forfeiture to effect it. Until this .is done the contract continues mutually binding on the parties, and the contract of the purchaser thereunder will sustain a lien." IS or can the vendor forfeit the con- tract after a lien attaches without notice to the mechanic, and giving him the opportunity to assume and carry out the contract of the vendee, and thereby secure his debt for labor or material.' On May 28, 1868, A., by contract, sold to B. a lot for $750, the first payment falling due May, 1870, the last. May, 1878, interest payable annually. The contract contained a clause of forfeiture for non-payment of interest, and w!as not recorded. A. also loaned B. $300 to help build on the lot. G. and others, under contract with B. for such improvement, acquired Hens ; on June 19, 1869, filed a petition against B. to enforce them, making A. a party, and alleging that B. held the premises under contract of purchase from A., who was summoned and made default. At the judicial sale, C. pur- ' Henderson v. Connelly, 33 A!pp. 601; 123 III. 98. ^ Moore v. Smith, 34 111. 518; Wing v. Carr, 86 id. 347; Phoenix Mat. Life Ins. Co. V. Batchen, 6 Bradw. 621. » Henderson v. Connelly, 133 III. 98; 2p App. 601. 32 Mechakic's Lien Law. chased the interest of B. in the property foi' the amount of his own and other liens, paid off the latter, and brought", suit against A., having tendered him the amount of the pnrchase-monej due by B., to compel specific performance of the contract with B., and to con- vey the property to him as purchaser of B.'s interest. The lower court refused so to decree, and ordered the property to be sold ; from the proceeds, first, to pay the original purchase-money; next, the lien of C; next, the loan of A. ; and, lastly, the lien claims paid by C. The Supreme Court reversed the decree, and held that no sale but specific performance should have been decreed ; that A. had no lien for his loan ; that not having declared the contract for- feited, as he might have done on B.'s default of paying interest in May, 1869, nor answered in the mechanic's lien suit when made a party, he could not, tliereforej declare it, and C. was, entitled to con- veyance on payment of only the original purchase-money, with in- terest, as named in the bond of conveyance.' § 56. Trustee with power to build consenting to improyement by cestui que trust confers lien. — Where the title is in a trustecj with power to build, his ownership is such as will sustaiiva lien." In this case', it was held where the beneficiary of the trust alone made the contracts ;and built with the acquiescence and knowledge of the trustee, there was a lien. Justices McAllister and "Walker dissented from this opinion, holding that th.e trustee must be a party to the .contract, if written, by signing it ; if verbal, by join- ing in making it. § 57. Ownersliip by estoppel sustains lien. — Ownership by estoppel is such as will sustain a lien. That is, where A., who is the real owner, allows B. to hold himself out as the owner to the party contracting,. that party can enforce his lieu on the property as if B. held the title in fee.= Where the owner stands by and suffers credit to. be given another on the supposition that he owns the land, and aids in creating such belief, he cannot defeat the claim of the mechanic by claim of owner- ship. If the owner suffers another to hold liimself out as having full disposition of the property, he is estopped to deny the liability .created thereon by such party.' ■ 1 Fitzhugh V. Smith, 62 III. 486. • 2 Taylor v. GilsdorfE, 74 111. 354. ' Higgins V. Ferguson, 14 111. 369; Donaldson v. Holmes, 33 id. 83; Schwartz V. Saunders, 46 id. 18; Anderson v. Armiptead, 69 id. 453; Powell v.. Rogers, 105 id. 318; adv., 1 Bradw. 631; Price v. Hudson, 135 111. 385;" Campbeirv. Jacobson, . 145 id. 389; 46 App. 387: Wilson v. Schuck. 5 Bradw. 573; Geary v. Hennessy, 9 id. 17; Little v. Vredenberg, 16 id. 189; Bruck v. Bowermastef, 36 App. 510. Necessaey Eequisites of Okiginal Contractoe's Lien. 33 Where a party fails to make known his rights when equity and good consuienee requires that he should do so to protect the interests of others, he cannot be heard as against them to assert su6h rights. § 58. Husband improTing wife's land. — These cases have gen- erally arisen when the land was that of the wife, and the husband contracted for the labor and materials to improve it, and was insol- vent when he did. Where the credit is given to the husband on his own account, the rule that the contract nnist be with the owner applies, and there can l)e no lien enforced against her land." The husband as well as a stranger may in good faith make im- provements on a wife's land as a gift, or may make them in discharge of ionafide indebtedness to her. . In such cases she is not bound for payment of what they cost. And if no false or fraudulent represen- tations are made, the contract made on the husband's credit, she is not estopped to set up her title.'' In this case it was held that the mere fact the contract was made in her presence, and the improve- ment made under her daily inspection, did not make her liable for a contract with her husband, who did not profess to own the property or to be her agent. Here, neither she nor her husband made any false representations. The contract was written and vrith her hus- band. Again, where a husband purchased materials which were used by him in repairing a house owned by his wife^ and in so doing did not purchase for her, or profess to act'in her behalf* but bought on his own account and solely on his own credit, giving his note for the price, it was held, no lien was created upon the premises of the wife.' Where a married woman's title is of record, she isi not estopped from claiming her ownership, unless her acts are tantamount to I'ep- resentations that the title is in her husband. Where she is not ap- prised of his making claim of ownership, and does not by word or act confirm the same, she can assert her title against the lien claim- ant.' In this case, though the wife borrowed money by mortgage, in ■which her husband joined, to finish paying for the house, her title was of record, the proof showed no knowledge by her of her hus- • Little V. Vredenberg, 16 Bradw. 189; McGraw v. Storke, 44 App. 311; Cle- ment V. Newton, 78 111. 427; Wendt v. Martin, 89 id. 139; Campbell v. Jacobson, 145 id. 389. " Geary v. Hennessy, 9 Bradw. 17. s Wendt V. Martin, 89 111. 139. ■• Campbell v. Jacobson, 145 111. 389; 46 App. 287. 5 34 Mechanic's Libn Law. band's claim of ownership, but that he promised to build the house for her, told her after work had progressed some time he was unable to complete it, and that she had never held him out or recognized him as agent or owner, and the lien was defeated. § 59. If wife misleads contractor lien attaches. — But our courts have gone very far in declariog her non-action as well as conduct works an estoppel ; having held that if a married woman sees the work go on, gives her approval and consent, takes no step to prevent it, she is estopped to sejt up her title adverse to the lien claimant.' Where the deed to the wife was made on June 1, recorded' July 28, the husband, claiming ownership, made the contract on July 24, it was held, that^ holding the deed off record enabled him to represent himself as owner, and as she saw the work go on without information of her title to those furnishing material for and doing it, and moved into the house, she was estopped to set up her title." The most advanced position, wherein also the husband was charged and held to have acted as the wife's agent, is that, if, after the contract with the husband by one ignorant of the wife's interest, the wife knowing what was done, does not disclose her interest and stop the work, she is estopped to set up her rights as a defense to a mechanic's lien.' Each case seems to have stood upon its own special merits, and to have been decided upon its own circumstances and surroundings. ' §60. Estoppel in general. In all cases estoppel is based upon a fraudulent purpose on the owner's part, and a consequent injuri- ous and fraudulent result to the party complaining. There must be deception and change of conduct in consequence thereof, to estop the party against whom it is pleaded from showing the truth. Where it is by conduct there must be a positive obligation to speak out and not maintain silence, and that silence must have induced the party complaining of it to have acted as he would not have other- wise done.* The mere assertion of ownership by one party, unknown to the actual owner, and unconfirmed, unaided by his conduct, does not estop that owner from asserting his title against all who would sub- ject it to their claims. He must aid or abet the assertion to' bind him.' ' Schwartz v. Saunders, 46 111. 18. ' Anderson v. Armistead, 69 111. 453. 5 Brack v. Bowermaster, 36 App. 510; Watson v. Carpenter, 37 id. 493. * Powell V. Rogers, 105 111. 318; adv. 1 Bradw. 631. Necessaky Kequisites of Okigiis'al Coitteaotor's Lien. 35' ' Estoppel can only be set up to prevent injustice that it directly and positively occasions, and, if the element of fraud or injury is absent, there is no estoppeli If both parties are equally cognizant of the facts, and the declarations or silence of one produces no change in the conduct of the other,, he acting solely on his own judgment, there is no estoppel.' And where the misrepresentations could not ha,ve misled the mechanic or materialman, or induced him to do labor or furnish material on the faith of it, there is no lien by estoppel, as where, after contract made, the contractor falsely represents himself to be the owner.' § 61. Improvement must be with owner's consent« — Where machinery was put into a mill under a contract with a former owner,, but after transfer of title, and without the knowledge or consent of the new owner, and he immediately disclaimed authority for soi doing and removed it, no lien was held to exist.' Where work is done or materials are furnished after rescission of the contract by the owner, there is no lien. The action of contrac- tor, materialman, or mechanic must then be, not to enforce a lien^ but for breach of contract.* § 62. Landlord and tenant. — Contract with a tenant, other than at sufferance, will sustain a lien as to his intel-est, but cannot affect the rights or interest of the landlord. Cannot extend to or bind the interest of the owner.^ The voluntary surrender of the lease to the owner of the fee before the expiration of his term can- not affect the lien upon the estate of the lessee, which attached dur- ing the existence of the lease, and the merger of the estate of the lessee with that of the owner of the fee will not destroy the pre- vious lien. But in case of forfeiture, and not voluntary surrender, the case is different. The forfeiture destroys the lien." A decree against the owner who accepts the surrender is good as to the im- provements made and the term of the lease. The owner must either accept the lien claimant as tenant for the term, or pay off the lien." A similar rale to that in cases of contract for sale prevails with landlord and tenant. Non-payment of rent does not, fer se, work a forfeiture of the tenancy. The landlord must show, the facts warranting the forfeiture, and declare it before the tenancy is > Powell v. Rogers, 105 111. 318; 1 Bradw. 631. ' ' Rothberger v. Oupuy, 64 111. 453. ' Cox V. Collea, 17 Bradw. 503. * Horr V. Slavik, 35 App. 140. ' Jadsou V. Stephen, 75 111. 355. « Williams v: Vanderbilt, 145 111. 338; 40 App. 398; Dobschuetz v. Holliday. 83 111. 371. 36 Mechanio's Lien Law. terminiated. If the lien attaches before such forfeiture it is good. The lien claimant can then pay the rent and enforce his lien on the term of the leasehold. Forfeitures arc not favored at law, either in contracts to convey or leases, and where rights of third parties in- tervene, are still less regarded. If the vendor is paid his purchase- price, the landlord his rent, they can ask no more.' § 63. Lessor authorizing improvements, lien on property. — , Where the lessor agrees to pay the lessee a given sum toward the erection of a house on the leased premises, the estate of the lessor is bound by the mechanic's lien.'' If, by the provisions of the lease, the improvements, when made, become the property of the lessor, it is no bar to the lien, because of the authority to build carrying with it the statutory incident of lien, and he takes them subject to the lien claim. He cannot take the benefit of the improvement and escape liability for it. The lien will attach to the leasehold for work on machinery which the tenant may remove under the terms of his lease.' If the lessee has the right to remove any improvements he makes, this right is acquired by the purchaser under sale in enforcement of the lien.' In event the lease provides for the purchase of improvements by the' landlord at the expiration of the term, unless specially so made, it is not a covenant running with the land, and is not binding npon the grantee of the lessor, and the ,lien will not continue as against such grantee.* § 64. No lien for improvements by insurance company. — "Where a house is rebuilt or repaired by an insurance company in case of fire, no lien can be sustained, because that is an affair of such company, not of the owner. Nor can an administrator subject the estate thereto. An executor could, if empowered to improve by the will. |t § 65. Contractor buying as agent; if he pays, no lien. — If a contractor, as agent of the owner, procures materials in the name and on the credit of the owner, and pays for them, he has no lien, but would have to sue at law to recover therefor.^ § 66. Where one of several owners contracts, his interest bound. — Where one of several who contract is an owner, the lien 2 Wiiliams v. Vaniierbilt, 145 111. 238; 40 App. 298. 8 Moore v. Smith, 24 111. 513; Smith v. Moore, 26 id. 392; Dobschuetz v. Holli- day, 82 id. 871. * Watson V. Gardner, 119 111. 312; adv. 18 App. 386. ' C. & V. R. R. V. Fackney, 78 111. 116; Rnggles v. Blank, 15 Bradw. 436. Necessary Kequisites of Original Contractor's Lien. 37 is good as against Ms interest ;' but where one of several owners does not join in tlje contract, his interest is not bound. § 67. Joint and co-tenants no lien as against each other. — Joint and co-tenants have no right of lien for improvements as against each other." § 68. No lien for party-wall without consent of adjacent owner. — There is no lien on an adjacent lot for a party-wall, unless the owner of that lot agrees to its erection. And where improve- ments are made on an adjacent lot not owned, but used by the party for whom the work is done, the lien exists only for the labor and material on the lot owned.' § 69. Corporation's contracts sustain lien. — A corporation is an owner whose contracts will support a lien where the same are made by corporate authority, and it is bound by the acts of its authorized agents just as an individual.* ' Van Court v. Bushuell, 31 111. 624; Koacli v. Chapin, 37 id. 194._ » Welch V. Sherer, 93 111. 64. 3 Tracy v. Rogers, 69 111. 662. * Board of Education v. Qreenebaum, 39 111. 610. 38 MECHAific's LiEK Law. The contract must be made to build, alter, repair or ornament a house, or other building, or appurtenance thereto on a particular lot or tract ol land, or upon some street or alley, and connected with a building or appurtenance on such lot or tract of land. § 70. Contract must be to improve particular lot. — An archi- tect would have no lien simply for plans and specifications for a building, or to alter, repair or ornament a hypothetical one. The owner who procures his services must intend to erect same, or to alter, repair or ornament one already in existence on some definite lot or piece of land. The same rule prevails with contractors and materialmen. The language of the statute is, that any person who shall, by contract * * * with the owner of any lot or piece of land, furnish labor or material, or services as an architect, or super- intendent, in building, altering or ornamenting any house or other building, or appurtenance thereto, on «McA lot, * * * shall have a lien on the whole of such tract of land or lot.' ' The logic and language of the statute are to make this statutory mortgage a lien on a certain definite piece of real estate, as much as a duly executed and recorded mortgage on that real estate. The formalities for the latter are its description of the property, signing and acknowledging the same by the owner and recording it by the mortgagee, according to law. The formalities for the mechanic's lien are the purchase of material, or contract for Work for the erec- tion or improvement of a building on certain property, furnishing the material or doing the work on that property, and filing the claim as the statute prescribes. Neither ordinary nor statutory mortgage would be a lien on any other than the real estate described in the one, or intended to be improved under the other. Both are par- ticular liens on specific property. The labor or material must be for some particular lot or tract of land whose improvement is in view, is intended at the time of contracting therefor, and is so un- derstood by all the parties to the transaction to sustain the mechanic's lien.' § 71. No lien for material on open account without reference to particular lot. — In furnishing lumber on open account, with- ' Sec. 1, act 1874, as amended; Hill v. Bishop, 25 111. 307; Burkliart v. Reisig, 34 id. 530; Croskey v. Corey, 48 id. 443; Lombard v. Johnson, 76 id. 559. 2 Croskey v. Corey, 43 111. 443; Wendt v. Martin, 89 id. 139; Clark v. Manning, 90 id. 380; Burns v. Lane, 33 App. 504. Necessaey Requisites of Original Contracxor's Lien. 39 out reference to being placed in any particular building, it was held there was no lien ; that it would have been no violation of the agree- ment by the purchaser if used in making furniture, or any other personal property.' "Where the contract was simply to put up an engine, boiler, etc., for the defendant in Chicago, it was held there was no lien ; for, so far as the contract showed, it could be put up on any lot in Chicago." In both cases, it was held that the purchase must be for the defi- nite purpose of use on a definite lot or tract of land ; that the con- tract must have reference to the land sought to be subjected to the lien. The same rule would apply to stone, brick, or any other material ■ sold on open account, without reference to any particular lot on which they were to be used. § 72. Does not extend to adjacent lot of same owner, even if inclosed. — A lien existing for work done on and material used in a building on one lot, cannot,be made to extend to an adjacent lot of the owner, even if in the^ same inciosure, unless by proper aver- ments both lots are to be considered as one.' And courts will take judicial notice that lots in different townships are in different tracts, and enforce the lien only on the lot on which the improvement etahds." § 73. In block of buildings dilferent roofs make diflferent liens. — Where more than one lot is covered by the improvement the extent, quantity, or ai-ea of property covered by the lien is de- termined by there being one common roof, or different roofs. The improvement may form in front and rear a solid block, but if there are dividing walls and different roofs the lien will be against that under each roof for what material is used, or what work is done under each roof.^ If the contract be to build a number of distinct and separate build- ings on separate lots, the lien is on eUch one for the labor done on or material used in it, the same as where in a compact body, but under different roofs." If a common roof cover all it makes the whole improvement a ' Hill V. Bisliop, 35 111. 307. ' Burkliart v. Reisig, 24 111. 530. » Seller v. Schaefer, 40 App. 74. * Van Lone v. Wliittemore, 19 Bradw. 447. ' Steigleman v. McBride, 17 111. 300; Culver v. Elwell, 73 id. 536; Portones v. Badenoch, 132 id. 377; Portones v-. Holmes, 33 App. 313; Major v. Collins 11 Bradw. 658. 40 Mechanic's Lien Law. unity, and one lien will cover tjie whole improvement. The prin- ciple and rule is the same as if one lot were improved.' The contract itself, is good in either event, if it be an entire con- tract for all and the intention he to so improve the lots, but regard must be bad to the manner in which the accounts are kept and liens asserted. If under difEerent roofs, or on different lots, the account for what material is furnislied, or for what work is done on each must be carefully kept separate, and the lien asserted in the same manner." Notwithstanding the entirety of' the contract, the lien cannot be enforced generally on all the buildings that the contract provides for.' § 74. If more than one bu^ding on same lot or tract, one lien for all. — If, howevei', more than onejjuilding be on the same tract, though there are different contracts for each, if between the sarne parties, the whole tract will be covered by the same lien and it can 'be enforced as a Common lien against all.' In this case the tract consisted of several hundred acres, the contracts were made and performed at different times. So, in cities where distinct buildings under distinct roofs are erected each upon a half, third, or less por- tion of a lot — say two, or three, on a fifty-foot lot, the lien would be good on all, without regard to what labor or material went into each. Their being on one lot would avoiii the necessity of separate accounts and separate liens for each. § 75. Where materials removed from one lot to another of owner, lien on each for amount on each. — Where, at the owner's instance, part of the material was removed from one lot to another belonging to him, and put into a building on the latter lot, the lien was enforced on each lot, respectively, to the extent of the value of the labor and material put upon it.' Though the contract were made only for the improvement of the first lot, in such case, the law would create a new and implied contract to improve the latter with the usual consequences of such contracts. § 76. If tract used for common purpose or a number of lots for common purpose, lien covers all. — And if the improvement he upon a tract of land used for a common purpose or business, though it be upon a small portion of the tract, the lien will cover 1 James v. Hambleton, 42 111. 308; Orr v. N. W. Mut. Life Ins. Co., 86 id. 260; Seller v. Schaefer, 40 4PP- 74. '.Steigleman v. McBride, 17 111. 300; Culver v. Ellwell, 73 i6. 536; Portones v. Badenoch, 133 id. 377; Portones v. Holmes, 33 App. 313. Major v. Collins, 11 Bradw. 658. ' 3 St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546. * Steigleman v. McBride, 17 111. 300. Necessary Eequisites of Okigiital Contractor's Lien". 41 the entire tract, as machinery on part of an eighty-acre tract where a section or more was held fqr development in coal mining, and the machinery was to be used in the general develppment of the entire property as time passed and work progressed.' The same principle would extend the lien over a number of lots, where the land had been so subdivided, in case all the lots were used as common ground for a business. For instance, if a block com- posed of several distinct lots were used for a foundry or manufac- turing plant, and the improvement were only on one or more of those so used, the lien would extend to all on properly averring and proving their use for a common purpose, which purpose the improve- ment subserved and was made for. § 77. Contract need not Ibe for definite amount of material nor provide for lien, nor describe property. — The contract need not be for any definite amount of material, for whatever may be used in the particular improvement is sufficient." It is not necessary for ^ the contract to provide for a lien. The law provides for that, and it has been held that where it is attempted to make a lien by con- tract between the parties, such contract must be in writing, that a ver- bal contract therefor was not sufficient.' Nor is it necessary for the contract to describe the property. While the contract for work or material must have reference to some particular lot, or tract of land, it does not follow that the legal description of the lot or land must be in the contract. The description of the real estate seldom, if ever, beyond mere location is considered by the parties when the contract is made. By other evidence it may be shown, but shown it must be, that the material was sold for that lot, or that tract of land sought to be charged.* § 78. Less particularity of description of property necessary where house or building under process of construction.— A distinction has been made between materials bought for a house in process of construction, or to put in one already built, so far as the degree of particularity necessary in designating the propertj;^ when the contract for materials was made. Where the contract was to aiter or add to a building already erected, as to place machinery in a mill in Charleston, 111., owned by the second party, it was held 1 Kankakee Coal Co. v. Crane Bros. Mfg. Co., 128 111. 627; 28App. 371; St. Louis National Stock Yards v. O'Reilly, 85 111. 546. ^ Thielnjan v. Carr, 75 111. 385; Brown v. Lowell, 79 id. 484. 2 Smith V. Kennedy, 89 111. 485. * Burns v. Lane, 23 App. 504; Strawn v. Cogswell, 28 111. 457; Power v. Mc- Cord, 36 id. 214; Lombard v. Johnson 76 id. 599; Clark v. Manning, 90 id. 380; Burns v. Lane, 23 App. 504. 6 42 Mechanic's Lien Law. sufficiently definite, though it was no further described. Where the building was in process of construction, a contract to furnish materials therefor, without specifically describing where it was, was held sufficient. Both decisions holding if it appeared. that the ma- terial was used in such building, the jury or court might properly infer it was bought for ^hat purpose.' But this inference would not be justified where no building was being erected and the goods sold on general account. § 79. Appurtenances must be on the same lot or tract. — The appurtenances nmst be on the same lot, or tract of land, on the same premises, or upon a street or alley, and connected with such building or appurtenance." Wliere the contract was for a mill on one lot it was held, the lien did not extend to a crib and wagon sheds on another lot across the street, though used in connection with the mill.' Where the contract was simply to curb, grade and pave the street in front of the house, and did not embrace "either building or im- provement of a building on the lot, it was held, no lien existed.* It was also held, that no lien existed for a vault under sidewalk adjacent to a building, and that both the building and the appurte- nance being provided for in the same contract, no distinct price for each, on account of the indivisibility of the demand, there was no lien for either.' This decision was rendered while the act of 1845 was in force. A comparison of the first section of that act with the first sectionof the present act shows wherein it is not now applicable. The phrase- ology of the present law is different,' and undoubtedly made so in consequence of that, then correct, decision disclosing the injustice done the contractor. la large cities extensive, costly and valuable improvements are made under adjacent sidewalks, such as vaults, and other apartments for business purposes and occupancy. , If the appurtenance, under the present statute, be not only on the lot, but upon any street or alley and connected with the building or the appurtenance of the building, the lien on the lot is good, and the ' Power V. McCord, 36 111. 214; Martin v. Ever^al, id. 223; Chishqlm v. Ran-' dolph, 21 App. 312; Austin v. Wohler. 5 Bradw. 300; Burns v. Lane, 33 App. 504; Lombard V. 'Johnson, 76 111. 599; Buckley v. Boutellier, 61 id. 293. ^ Sec. 1, act 1874, as amended; Parmelee v. Hambleton, 19 111. 615; Adler v. World's.Pastime Co., 136 111. 378; 36 App. 528; Tracy v. Rogers, 69 111. 663. 3 Paddock v. Stout, 131 111. 571; Stout v. Sower, 33 App. 65. * Smith V. Kennedy, 89 111. 485. ' Parmelee v. Hambleton, 19 111. 615. , ' Sec. 1, act 1874, as amended. ' Necessaet Bequisites of Original Oonteactor's Lien. 43 lien for the indivisible demand enforceable. While the word " side- walk " is not used, it is part of the street, the part for pedestrians, and would be included in it. Liens were sustained for putting in a furnace,' but not for stoves, for painting," but not for a lightning rod ;' also for boxes for hoist- ing coal put in in connecting with ait engine and hoisting apparatus,* and for cars used in connection with a drier in a brick-yard,' on the theory that they were part and parcel of one system of machinery, and though not attached to the land or building, yet were an essen- tial part of that which was attached, were necessary appurtenances of the main improvement ; but fencing on a farm was held not to be such an appurtenance as came within the purview of this statute.' ' 1 Thielman v. Carr, 75 111. 385. * Dobscliuetz v. HoUlday, 83 111. 371. » Martine v. Nelson, 51 111. 423. \ '° Curran v. Smith, 37 App. 69. » Drew V. Mason, 81 111. 498. « Canisius v. Merrill. 65 111. 67 44 Mechanic's Liex Law. This contract must be made in strict accordance I -witii the statute creating th^se liens. § 80. Contract must be according to statute. — The earlier acts applied solely to express contracts. The many decisions there- under hold that the contract (e^ipress) must affirmatively show on its face — must state — the time when the labor was to be completed, the materials furnished an^ the payment made therefor, as well as the time of commencing such labor and delivery of materials ; that unless the time for the completion of snch labor, or of furnishing the material, as stated in the contract, was within three years from the commencement thereof, and th'e time of payment within one year from such completion, there was no lien, even if the labor were all done, the material all furnished in one month, 6r a few months after the commencement thereof.' § 81. Change by act of 1861, allowing liens under implied contracts. — Many of the cases adjudicated presented these very hardships. To remedy this, the legislature, in 1861, amended the act as follows : " That chapter 65 of thei Revised Statutes of 1845, entitled ' Liens,' shall be heJd to include implied as well as express contracts under which labor or materials are furnished at the request of any owner of land or town lot, for erecting or repairing any building or the appurtenances of any bnilding on such land or town lot, when no price is agreed upon or no time is expressly iixed for the payment of such labor or the furnishing of such labor or materials ; Provided, that the work is done or materials furnished within one year from the commencement, of the work, or the commencement of furnish- ing said materials." Prior to the passage of this amendment the courts held, excepting where it was intimated in Cook v. Vreeland, 21 111. 431, that time of payment might be implied," time of completion being fixed, that the court could not imply a time for either, that the contract stating a,nd conditioning that completion and payment should be within a ' Cook V. Heald, 21 111. 425; Cook v. Vreeland, id. 431; Senior v. Brebnor, 22 id. 253; McLurken v. Logan, 23 id. 79; Rogers v. Ward, id. 478; Brady v. An- derson, 24 id. Ill; Moser v. Matt, id. 199; Burkbart v. Reisig, id. 530; Pbillips V. Stone, 25 id. 67; Columbus Macbine Manfg. Co. v. Dorwin, id. 153; Scott v. Keeling, id. 316; Kinzey v. Tbomas. 28 id. 502; Kinney v. Sherman, id. 520; Rowley v. James, 31 id. 398; Coburn v.' Tyler. 41 id. 354 (Fisb v. Stubbings, 65 id. 4^2; Powell v. Webber, 79 id. 184, so held, but were overruled in Clark v. Manning, 90 111.. 380. as contrary to amendment of 1861). ^ Appendix, amendment of February IS, 1861. Necessary Requisites of Obiginal Oontbactoe's Lien. 45 reasonable time, as soon as possible, etc., was insufficient and fatally defective.' After this amendment, tbe legislative definition of an implied contract was adopted by the courts — that a contract which did not fi.x a date for completion or payment, was not an express, but an implied contract; that the law would imply that completion was to be in a reasonable time after commencing work, or delivery of ma- terial; that within a year thereafter was a reasonable time; that there was a promise to pay on completion.' §'82. Present law. — The present act provides that when the con- tract is expressed, no lien shall be created, if the time stipulated for tbe completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment be- yond one year from the time stipulated for the completion thereof." If the work is done or materials are furnished under implied con- tract, no lien shall be had by virtue of this act unless the work shall be done or the materials be furnished within one year from the commencement of the work or delivery of the materials ;' and in- cludes a third class of contracts, partly expressed, partly implied, concerning which no limitations are laid down.* A contract for furnishing materials to be used in a building, fix- ing the prices of articles to be delivered, but leaving all other matters to be implied, is not an express contract within the meaning of the term in the lien law, but of the latter class. ,In such cases, if the materials are all furnished within one year from the com- mencement of deliv«iry thereof, the materialman will be entitled to a lien.* While the statute is sileut as to contracts partly expressed and partly implied, the courts hold that such parts as are expressed shall ' Roach V. Chapin, 37 111. 194; Claycomb v. Cecil, id. 497; Coburn v. Tyler, 41 id. 354; Baxter v. Hutchings, 49 id. 116; Corey v. Croskey. 57 id. 251; Chicago Artesian Well Co. v. Corey, 60 id. 73; Schuell v. Clements, 73 id. 618; Cunning- ham V. Ferry, "74 id. 436; Reed v. Boyd, 84 id. 06; Orr v. N. W. Mut. Life Ins. Co:, 86 id. 360; Belanger v. Hersey, 90 id. 70; Grundeis v. Hartwell, id. 334; Clark V. Manning, id. 380; Driver v, Ford, id. 595; Powell v. Rogers, 105 id. 318; Pad- dock V. Stout, 131 id. 571; Portones v. Badenoch, 133 id. 377; McDonald v. Rosen- marten, 134 Id. 136; Peck v. Standart, 1 Bradw. 338; Rogers v. Powell, id. 631; Graham v. Meehan, 4 id. 533; Austin v. Wohler, 5 id. 300; Younger v. Louks, 7 id. 380; Jacoby v. Scougale, 36 App. 46; Haines v. Chandler, Id. 400; Adler v. World's Pastime Co., id. .528; Kankakee Coal Co. v. Crane Bros. Mfg. Co., 38 id. 371; Harwood v. Brownell, 33 id. 347; Lehman v. Clark, 33 id. 83; Portones' v. Holmes, id. 313; Rittenhouse v. Sable, 43 id. 558. ' Sec. 3, act 1874, as amended; McDonald v. Rosengarten, 134 111. 136. ' Sec. 3, act 1874, as amended; Grundeis v. Hartwell, 90 111. 334. * Sec. 3, act 1874, as amended; Orr v. N. W. Mut. Life Ins. Co., 86 111. 360; Orundeis v. Hartwell, 90 id. 334; Austin v. Wohler, 5 ,Brad. 300; Younger v Louks, 7 id. 380. 46 Mechanic's. Lien Law. be governed' by the rules relating to express contracts, such parts as are implied, by the rules relating to implied contracts.' § 83. Terms of contract as made decide lien. — There are no peculiar formalities requisite to be observed in making the contract different from other contracts. As stated, it may be written or ver- bal, express, implied, or partly expressed and partly implied. But the time within which it is to be performed and payment is to bQ made does decide whether or not there is alien under it, and, if so> how it is fixed and enforced.' § 84. Lien depends on original contract, not on changes made in it.. — The right to the lien depends upon the contract as originally made, not what may be done thereafter in the execution of it.' If it did not then comply with the statute no subsequent changes or amendments will help it, nor will its execution in time be of aid. If an express contract, for instance, as originally made provide for completion more than three years after commencement of the work, chanffing the terms thereafter so as to make it within the three years, or completion within that period, will not restore the lien lost by its making. So, if it provide for final payment more than one year after completion, a subsequent agreement changing the time to within one year will have no different result. And if the lien once attaches it will not be divested, so far as the owner is concerned, by subsequent change, as indulgence of time of payment. A subsequent change of time of payment, if the original contract fixes the same within one year from the completion, will not divest the lien. Where a note was taken payablte one year after com- pletion and renewed, the vrenewal falling due after the expiration of the year, it was held, such extension did not defeat the lien, because 'the terms of the original contract were witliin the statutory period.* The question is not whether the parties do, or do not agree, after the execution of the contract, to an extension or abbreviation of the time of performance or payment, the question is as to terms of the contract. And the filing of the claim required within four months from the date of the last payment must be done with regard to the date fixed in that original contract.* • Orr V. N. W. Mut. Life Ins. Co., 86 111. 360. ^ Sec. 2, act 1874, as amended. s Simons v. Blocks, 16 Bradw. 450; Growl v. Nagle, 86 111. 437; McCarthy v. New, 93 id. 455; Paddock v. Stout, 121 id. 571; Chisholm v. Williams. 138 id. 115; Simon v. Blocks, 16 Bradw. 450; Chisholm v. Randolph, 21 App. 313- Stout V. Sower, 23 id. 65. * Chisholm v. Williams, 138 111. 115; Id. v. Randolph, 21 App. 312. ' Brady v. Anderson, 24 111. Ill; Moser v. Matt, 34 id. 199. Necessary Eequisites of Original Contractor's Lien. 47 § 85. Express contract, example of. — Au express contract made to commence work January 1, 1894, stating that the work was to be completed, or materials furnished by or before January 1, 189'J, final payment, January 1, 1898, would sustain a lien. If it made completion January 2, 1897, there would be no lien, though final payment was made due on completion. If it made completion January 1, 1897, and final payment January 2, 1898, there would be no lien ; or, if it made completion to be in a month^ final payment due more than a year after that month, there would be no lien. So if the contract to build a house or furnish materials is made to commence on January 1, 1894, no time specified for com- pletion of contract or delivery of materials, or payment, and the performance of any part of the work or delivery of any part of the materials is prolonged to January 2, 1895, the lien for all is lost. Contract dated March 14, 1867, to complete May 1, 1867, pay- ment $560 ; $100 cash, balance, $10 per month, held, entitled to no lien, payments being extended beyoad one year.' * § 86. Extension of time on condition ; witliout condition. -v-But if payment be extended beyond one year on condition that a mortgage on the property be executed at the expiration of the year, to secure balance due, this becomes a condition precedent to the extension of time, and if the mortgage is not given, the debt then becomes due and a lien can be enforced.'' If, however, the contract provides absolutely that payment shall be by note due two years after completion, the giving of the note is not a condition precedent. The condition puts the case beyond the statute and there is no lien, whether the note is or is not given.'' To save his lien the mechanic should provide in the contract if such note is not given the debt shall at once become due. If notes be given due one year after completion, the three days' grace of commercial usage extended for payment will riot vitiate the lien.* § 87. Not necessary to fix a certain date for completion or payment. — It is not necessary to fix a certain day and date of a certain month for completion or payment, but a time within the period named by the statute. ' Beasle v. Webster, 64 111. 458. In this case the purchaser assumed and agreed to pay the contractor's bill, and the court held, that such contract being for the contractor's benefit, though he was not a party^to it, he could recover the debt from the purchaser, even if his lien was lost. « Gardner v. Hall, 39 111. 277. 3 Simon v. Blocks, 16 Bradw. 450. * Paddock v. Stout, 121 111. 571; Stout v. Sower, 23 App. 65. 48 MECHAisric'a Lien ■ Law. A coutract dated March 22, 1872, to complete on or about Jnly 15, 1872, payment 85 per cent as wofk progresses, balance on com- pletion, was held sufficiently definite as to time and payment.' A contract stating that payment shall be made in installments of 10 per cent as the work progresses, the work to be completed within three years from the date of contract, and all payments to be made within one year from the time of completion, without fixing a pre- cise day for either, is good.' When the contract provided foij a day certain, for completion, as August 1, but a working test is provided,' the date of that test will be held the date of completion, be it sooner or later than the date fixed in the contract." § 88. Must do one of two things.— In the absence of an express contract limiting tiie time in which to furnish materials or perform the contract within three years after commencement thereof, no lien is created, unless the materials are in fact furnished or the contract is performed inside of one year. It is equally necessary to do one "of two things -^ either to make an express contract limiting the time of performance to within three years after commencement of what is to be done under it, or to complete that perforriiance witiiin one year from its commencement.* § 89. No time stated for performance or payment. — A con- tract to furnish materials as needed, no prices being specified, nor amounts, nor times for completion of delivery, will sustain a lien if performed within one year.' A party agreed with the owner of property about to build to let' bim have hardware from time to time as needed in the construction of the building. No amount of hardware was specified, and no time fixed for tlie completion of the building. The contract was made in October, and it was understood, though not agreed, that the building was to be completed by January 1, following. The hardware was furnished according to the contract, beginning in October and ending in November. Held, that this was a contract partly expressed and partly implied, within the meaning of the statute, and the party furnishing the material was entitled to a lien. That the intention of the legislature in adopting the Mechanic's Lien Law of 1874 was, where the terms of a contract are partly expressed and partly implied, 1 Schnell v. Clements, 73 111. 613. « Reed v. Boyd, 84 111. 66. 3 Paddock v. Stout, 131 111. 571; Stout v. Sower, 33 App. 65. * Haines v. Chandler, 36 App. 400; McDonald y. Bosengarten, 184 111. 136; 35 Api). 71. ' "Orr V. Ijr. W. Mut. Life Ins. Co., 86 111. 360; § 81, note. Necessary Requisites oe Okiginal Contkactor's Lien. 49 to limit the express terms by the same limitations, eg far as applicable^ as is applied to express contracts; and the implied terms, by the same limitations, so far as applicable, as is applied to implied con- tracts, though the statute does not fix any limitation whatever when the contract is partly expressed and partly implied. Under a^contract to build for $2,800, $1,000 as work progresses, balance when finished ; held, contract good, if the work was finished within a year.' Where the delivery of materials was begun on June 19, 1883, and last deli very was made in November, 1884, there was held to be no lien.' Where delivery was begun May 22, 18S7, and last delivery was made May 31, 1888, there was;no lien.^ § 90. Law requires only request by owner and compliance Tvithin year. — The law requires only, in order to create a lien, as far as the agreement of the owner of the land and the mechanic or materialman are concerned, that labor or material should be fur- nished at the request of the owner of the laud, for erecting, repair- ing or ornamenting any building thereon, when no price is agreed upon, or no time is expressly fixed for the payment of such labor or materials, that the work be done or materials furnished witlnn one year from the commencement of the work, or the commencement of furnishing the materials. A contract arises by implication from these facts, the existence of which creates a lien on the land. To bring a case within the law, it is only necessary for a materialman to show that he was requested by the owner of the land to furnish him with materials for making improvements on the land, and that afterward, in compliance with this request, he furnished the mate- rials, and they were used for the purpose indicated. Then a lien is created for the value of the material, provided they are furnished in one year, and there need not be any other agreement, express or implied, in order to the creation of the'-lieii.' This decision was rendered under the act of 1861, but applies to the present law. § 91. Where contract express, except as to time of comple- tion, lien if completed in year. — Where the contract is silent as to the time of completion, and express as to all other terms, there is a lien if the work be done within a year fi-om its commencement. ' ' Clark V. Manning, 90 111. 380. ' Haines V. .Chandler, 26 App. 400. ' Harwood v. Brownell, 33 App. 347. * Chicago Artesian Well Co. v. Corey, 60 111. 73. * Younger v. Louks, 7 Bradw. 280. 7 50 Mbchakic's Libit Law. § 92. Where working test fixes date of completion, date of test controls lien. — It is held that where the date of completion is' fixed by a working test, as when machinery is finished and started to satisfactory results, such test, i-egardless of the day and date named in the contract for completion, is the time of completion. Hence, if the test were made more than one year after commence- ment of work, and the contract is an implied contract, there would be no lien." § 93. Importance of distinction between express and implied contract. — While the liberality of later decisions relieves from, much of the rigor of former interpretations of the contract as to whether it is express or implied, the distinction is yet important ; for, as is later shown, when suit is brought, the claimant must set- out in his petition what character of contract he relies upon for re- covery, and is bound by what he claims it to be.' If it is an implied contract, he must state it to be such. And in event it is, there is no lien if the labor or delivery of materials be prolonged for over a year after the same are commenced.' § 94. Character of labor or material must be such as statute provides for. — The service must be such as the statute provides for. •If the contract embrace work or materials for which no lien is allowed by the statute, and there be one price for all, the vicious leaven of no lien for part will leaven the whole and vitiate the lien for the entire contract.' In such ease, if there were a separate price for that portion for which a lien was allowed, and for which it was not allowed, the demands divisible, the lien would be good for that portion provided for by the statute, lost only as to the other. For this reason, it was held that a plumber had no lien for the hire of his license to another plumber who had none, in order that the latter might purchase material and carry out a contract he had entered into ;* that an architect had no lien for clerical services, such as settling with contractors, keeping books, auditing accounts, nor for supervising the improvement of grounds and accessories ;' and that there was no lien for the mere removal of a house from onef'lot to another ;° nor for any other work, material or purpose other than that which the statute expressly names. 1 Paddock v. Stout, 121 111. 571. « Post, § 214. 3 Parmelee v. Hambleton, 19 111. 614; Adler v. World's Pastime Co., 126 id. 373j 26 App. 538, * Burnside v. O'Hara, 35 App. 150. ' Adler v. World's Pastime Co., supra. • Stephens v. Holmes, 64 111. 386. Necessary Kequisites of ORiGiiirAL Contractor's Lien. 51 The contract mnst be performed, or its nou-per- formance excns^ed according to lavr. § 95. Contract must be performed, or non-performance ex- cused. — Two things must co-exist to sustain the lien. 1. Tho contract made, as heretofore shown, and possessing all of the statutory requirements stated. 2. Performance of that contract, or its non-performance excused according to law. As a distinction is made in the decisions between what constitutes performance on the part of the contractor, and what on the part of materialmen and others, this performance will be treated of with regard to the respective parties. § 96. No lien for work unless done. — First, as to the contractor for the work. The contractor for work cannot enforce a lien where there is simply a contract, but no work done under it.' In the event the owner, after making the contract, refuses to permit him to start the work, his remedy is at law for breach of contract, not under this statute to enforce the lien.'' If, after he starts the work, the owner either wrongfully refuses to permit him to go on with and complete it, or wrongfully discharges him, he can enforce his lien for the value of what he has done, according to the contract price, and recover under the act therefor,' but not for damages based on pro- spective profits. For such he can maintain a separate action at law, but there is no lien therefor.* The lien is only for what is done in building, altering, repairing or ornamenting a building or appurte- nance thereto, as heretofore shown. Where work is done without the owner's consent, and after re- scission of a contract, this general rule applies, because, then, there is no contract to support the lien.^ If defects are complained of and the contractor offers to remedy them, and is denied, he has a lien.' And if there is a substantial performance of the contract, the work is accepted and the perform- ance of the balance thereby waived, the lien exists.' ■ Wendt V. Martin, 89 111. 139; Horr v. Slavik, 35 App. 140(a). ^ Horr V. Slavik, 35 App. 140. ' McAuley v. Carter, 23 111. 53; Sanger v. City of Chicago, 65 id. 606; Heiman V. Schroeder, 74 id. 158; Kipp v. Massin, 15 Bradw. 300; Watroas v. Davies, 35 App. 543; sec. 11, act 1874, as amended. * Sanger v. City of Chicago, 65 111. 506. ' Welch V. Sherer, 93 111. 64. ' Havighorst v. Lindberg, 67 111. 463. 53 Mechanic's Lien Law. § 97. If contract for entire work, no lien if property burned or destroyed. — But if a contractor undertakes to erect an entire building, and it is destroyed, blown down or burned before comple- tion, there is no lien for what has been done.' Where a party un- dertakes an entire work not impossible, he must do it, or he cannot recover ' He can neither maintain an action for work partly done, nor to enforce a lien therefor, unless reasons exist for not doing it all which are recognized as sufficient by the law." In such case he cannot quit when lie chooses, without cause, and enforce a, lien for such portion of the work as he may have per- formed. He has no power to split up an entire demand, and main- tain several suits, and enforce several liens, and thus harass and vex the owner with costs. He must perform his contract unless wrongfully prevented, before he can enforce his lien. Any other construction of the statute would render it liable to be made an en- gine of oppression, instead of the means of obtaining justice.' If he were only to do part, as the carpenter work, he would have a lien, in case of destruction.' § 98. Non-payment excuses abandonment^ and lien for what done. — It has been repeatedly held, that mere non-payment of in- stallments, as agreed, is no excuse for non-performance of the con- tract, or abandoning it, unless such payments are expressly made a, condition precedent to going on with the work.' This is undoubt- edly the common-law interpretation, but the statute now provides for such cases.* When the owner of the land shall have failed to perform his part of the contract by failing to advance to the con- tractor moneys justly due him under the contract, at the time when tlie same should have been paid to the contractor, or has failed to perform his contract in any other manner, and by reason thereof, the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reason- able compensation for as much thereof as has been performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim and allow him a lien accordingly.' If the contractor be without the means, and dependent upon the 1 Sontag V. Brennan, 75 111. 27S; Schwartz v. Saunders, 46 id. XH; Thomas v. Industrial University, 71 id. 310. 2 Thomas v. Industrial University, 71 111. 310. s Kinney v. Sherman, 38 111. 520; Geary v. Bangs, 83 App. 583. This decision ■ was prior to the amendment of sec. 11, April 33, 1891. * Sec. 11, act 1874, as amended. , ' Sec. 11, act 1874, as amended. NuOifiSSARY EeQUISITBS of OkIGINAL OoifTRACTOE'S LiBN. 53 agreed payments to furnish the money for carrying on the work, this protects him and secures him the value of what he has done. And wherever it becomes necessary to enforce the lien on the quantum meruit, the action must be brought under section 11 of the act.' § 99. Where contractor is delayed, he has lien for extra expense. — Where the contract provides that in case of delay caused by the failure of other contractors to complete their work in time, extra time should be allowed, such provision will not pre- clude the contractor making it from recovering damages resulting from the delay.' It is incumbent upon one erecting a building to keep the work in such a state of forwardness as to enable the respective contractors to complete their respective contracts in the time limited. In this case the contract provided that, in case the parties failed to agree as to the value of extra or deducted work, or the amount of extra time to be allowed iu case of delay, the de- cision of the architect should be final and binding ; the same in case of any disagreement between the parties relating to tiie per- formance of any covenant or agreement in the contract. The court held that the claim made by the contractor was not within the clause of the contract relating to questions which the architect should decide ; that the rise in wages in consequence of the delay having made the work cost the coi^tractor $473.20 more than it would if he had not been so delayed, he could recover such sum from the owner and enforce his lien therefor.' § 100. Extra work provided for by contract is part of same. — Where the contract is to do certain work for a certain price, but provides for extra work, such, however much it may be, is part and parcel of the original contract, and a lien for extra payment there- for beyond the price for the stated work exists as completely as for the work named in the specifications, whether a specific sum, or what is just and reasonable, be agreed to be paid for the extra work.' § 101. Promise to pay increased price not binding without consideration. — But where the work is undertaken for a certain sum, there must be a consideration shown to support a claim for ex- tra pay for doing that work. Even a promise to pay additional therefor is not binding on the owner making it, unless there is a con- ' Watrous v. Davies, 35 App. 542. " Nelson v. Pickwick Associated Co., 30 App. 833. 3 Brown v. Lowell, 79 111. 484. 54 Mechanic's Lien Law. sideration to support his promise.' If it is shown that such consider- ation existed, and that the promise of extra pay was made on account of it, the lien exists." Where a party employed under a special verbal contract to fur- nish materials and erect a building, finding himself unable to perform without great loss, owing to a rise in prices, informed his employer that he would not comply with the contract, and the employer di- rected him to go on and finish the work, and he would pay him what was right for it, it was held, that the new agreement was based upon a sufficient consideration and valid. The mutual prom- ises of the parties were sufficient to support the new agreement.* Where it was claimed there was a mistake of $500 in the price of the work, and the contractor refused to go on with it, and the owner agreed to pay that sum in addition to the contract price, the new and supplemental agreement was held valid, and that such modifica- tion changed no other terms of the contract but the price.*" § 102. Allowing work after time provided for completion waives forfeiture. — Suffering the contractor to go on with the work after the agreed time for completion waives any forfeiture of the contract, as an entirety, stipulated for non-completion at a cer- tain date, but does not waive or change any of the other terms of the contract, or preclude the owner claiming damages for non-com- pletion in time.' § 103. Architect's certificate. — If the contract provides that the architect's certificates must be procured for all payments, or that vouchers showing the contractor's bills are paid must be presented, these must be produced before the contractor can sustain a lien on demand for and refusal of payment ; but if the owner refuses to pay without demanding compliance with these conditions precedent as a basis for payment, the contractor is excused from compliance with the conditions.* Where the contract makes the time for completing the work essen- tial, and provides for a forfeiture of so much per day for every day the work shall remain unfinished, as liquidated damages, the architect's certificate of the completion of the work, and the sum due the contractor, but which fails to state the completion of the ' Nelson v. Pickwick Associated Co., 30 App. 333. " Bishop V. Busse, 69 111. 403(a); Cook v. Murphy, 70 id. 9e.{^) sNlbbe V. Brauhn, 24 111. 268; Eyster v. Parrott, 83 id. 517; St. Louis Nat. Stock Yards v. O'Reilly, 85' id. 546. * Downey v. O'Donnell, 86 111. 49; 93 id. 559; Ewing v. Fiedler, 30 App. 203; Wolf V. Michaelis, 37 id. 336; Miohaelis v. Wolf, 33 id. 645. Necessary Eequisites of Original Contractor's Lien. 55 work, within the time fixed, will not preclude the other party from insisting upon the damages agreed upon for delay in finishing and delivering up the building, and it is error to exclude evidence show- ing such delay.' The form of the certificate must be according to the contract. The architect's omission to state "complete according to plans and specifications" does not impair the certificates, unless the contract so required." If the contract requires completion within a certain time, without providing for damages at so much per day, and the architect does not certify the work was completed in time, the owner can claim damages for delay, if any, in reduction of the contractor's claim, or to defeat the lien.' Fraud or such mistake as clearly shows the architect was misled, deluded, and so far misapprehended the facts that he did not exer- cise his real judgment in the case, invalidates the certificate and justifies the owner's refusal to pay on pi-oduction thereof.^ , It has also been held that the owner, notwithstanding the issuance of the certificate, ought to be allowed to show that the contractor had not followed the plans and specifications whereby the owner was injured, where such showing would disclose such gross negligence on the pd,rt of the architect as to raise a presumption of fraud or mistake. In that case the architect admitted he had never looked to see if certain parts of the specifications were complied w;ith.* But the architect's certificates are binding and conclusive on both parties where he is made the arbiter, unless impeached for fraud or mistake, and if such be charged, it must be clearly shown, as pre- viously set forth.'' The death of one of a firm of architects terminates the authority of the survivor, unless both parties recognize his certificates, in which case they have the same force as of both.' Breach of contract by owner dispenses with necessity of certifi- cates. Where the contractor is wrongfully discharged he does not need the architect' s certificate. He is relieved of all the terms of the contract by his wrongful discharge, except the value of his work, which is to be measured, as before stated, in proportion to the price ' McAuley v. Carter, 22 111. 53. = Downey v. O'Donnell, 86 111. 49; 92 id. 559; Ewlug v. Fiedler, 30 App 202- Wolf V. Michaelis, 27 id. 836;" Michaelis v. Wolf, 83 id. 645 2 Ewinff V. Fiedler, 30 App. 202. * Davidson v. Provost, 35 App. 126. ' Downey v. O'Donnell, 86 111. 49; 92 id. 559. 56 Mechanic's Lien Law. stipulated for the whole.' And destruction of the premises by fire, or otherwise, is an excuse for not obtaining or producing the certifi- cate.'' § 104. Damages where work not done according to contract. — The measure of damages, where the work is done, but not accord- ing to contract, yet is retained and used, is the difEerence between the value of the article furnished and that contracted for, and loss of use while necessary changes are being made to make it suscepti- ble of use ; nor will receiving and using estop the owner from claim- ing damages if the work or material be defective.' The damages resulting from failure to complete according to con- tract, are what it will cost to so completfe the work.* Damages are allowed also under certain circumstances for supervision of work, and gathering materials by the owner for that purpose." Damages for delay are regarded as waived by the owner, if not claimed at the time, and when once waived, they- cannot be set off in enforcing a Hen.' The purchaser can recoup in damages for defective performance of the contract when the lien is sought to be enforced on the prop- erty, the same as his vendor could, and avail himself of any defenses to discharge the lien that such vendor might.' § 105. Materialman no liens, unless materials used. — As to materialmen and others, the decisions hold that something more must be done than what universal usage, recognizes as completion of their contract — something that they have nothing whatever to do with ; that rests wholly beyond their power ; that is, incorporation of the material into and attaching it to the land. The language of the statute is who performs the services, or fur- nishes the materials "m building, altering, repairing or orna- menting.'" § 106. As to architects. — According to this, an architect has no lien, though he completes and delivers the plans and specifications; does all that his contract obligates him to do, unless the contemplated improvement is in part or whole piut on the realty. He; as others named in the statute, cannot assert his lien on any lot of the owner- ' Watroua v. Davies, 35 App. 543. 5 Sontag V. Brennan, 75 111". 379. ' Strawn v. Cogswell, 38 111. 457. * Hellman v. Schneider, 75 111. 433., 5 Metz V. Lowell, 83 111. 565. 6 St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546. ' Cox V. CoUes, 17 Bradw. 503. * Sec. 1, act 1874, as amended. Necessary Kequisites of Original Contractoe's Lien. 57 He can assert it only on the lot his work was done for ; and if noth- ing were done on that lot through indecision, caprice, or change of mind on the part of the owner, he would have no secui-ity. The statute may mean who performs services for the purposes of such improvement shall have a lien on the lot or tract intended to be improved, but it does not say so. The architect must risk the doing of what his work is a guide of and preparation for to enable him to establish his lien. § 107. As to materialmen. — When the materialman has deliv- ered the materials at or on the premises to be improved, he has completed his contract, done all he was to or could do. He has no power to put the material into the building ; and to hold him to the duty of himself seeing it is attached, or detailing an agent to do so, is to impose a hardship unreasonable, if not absurd. Yet our courts hold that unless the materials are attached to the realty, the material- man has no lien. § 108. Bight of materialman to recover on furnishing mate- rial whether used or not, and discussion of cases in regard thereto. — So many losses have been incurred by reason of inability of materialmen to prove incorporation of their material, properly delivered, into the improvement, and by reason of fraudulent diver- sion of such delivered material by the purchaser, that it may be well to examine these decisions and see whether or not there has been a full consideration of the language of the statute, whether or not legislation is needed to change the verbiage of the law, or a change of decision is warranted. ' In the first case, where it is so held, the question was whether there was a lien for materials sold out of, but used in this State. There was no question of diversion ; they were used. The court held that the use of the material furnished upon the premises, put- ting them into the building, attaching them to'the freehold, gave the lien, no matter where the residence of the seller.' In the next case, where the question was with regard to priority of lien between mechanic and mortgagee, wherein it was held that the mechanic's lien attached on completion of the work or delivery of material, and use of them, by connecting them to the freehold, not the date of the contract (the contrary of which our courts now hold), this case is approved. But the court say, by delivery of material * * * means are offered others to know something of ■ Gaty V. Casey, 15 111. 190. 58 Mechanic's Liek Law. finch cliams for the time that may follow, within which the right of lien must be asserted. ' There was no question of diversion, and delivery of the material seems to be regarded decisive of the lien. In the next ease, an innocent purchaser held the property when enforcement of the lien was sought, and the court held, as follows : The (lower) court substantially construed this law as giving the lien whenever a contract has been made for the furnishing of ma- terials to be put in a building on the lot, and, in pursuance of such contract, materials have been furnished, whether those materials, thus furnished, were actually used in the erection of such building or not. We do not so understand this law. The legislature only intended to give this lien for the materials actually used in, or the labor really bestowed upon, the building situated _ upon the premises against which the lien is sought' to be established. Tlie object of the law was to allow the party to pursue the thing actually fur- nished. Two things must concur to create the lien; first, the con- tract ; and second, the furnishing of the material actually used. Suppose, in this case, there was a contract made, and, in pursuance thereof, the lumber was furnished, which was found to be unsuit- able for the building, and was, consequently, sold to other parties, and never put in, the building at all, but the lumber actually used was furnished by another, under another contract. The statute certainly gives a lien to the one who furnished the lumber which was used in the building, and to the workmen who did the work in the erection of the building ; and yet, according to the construction given by the court below, the party who made the first contract, and furnished lumber never used upon the premises, may also have a lien upon the same building and premises. Not for any thing which he has done to enhance their value, nor by reason of any in- cumbrance upon them, but because the owner of the premises had purchased lumber for the purpose of using it on the premises, but which he never did so use. Under the construction given to this law, who has the prior lien ? The party who furnished the materials with which the build- ing was erected, or the one whose materials were not put in the house? The legislature intended to create no such conflicting claims. The very essence of the lien created by this statute is the furnishing the materials of which the building is constructed. The act con- 1 Williams v. Chapman, 17 111. 423. Necessary Eequisites oe Oririital Contractor's Lien. 59 tinues in the party furnishing the materials of which the building is erected, a quasi property in those materials, and others with which it has been commingled in the building, and allows him to follow it, thus transformed, for the purpose of getting his pay. If materials are furnished me for the purpose of being put upon lot 1, and I put them on a building in lot 2, the lien is upon the last lot, where they were actually used, and not on the first. There is no lien upon the premises till the material is put upon them. Under this construction, if a man goes to Chicago, and buys lumber to build a house on a particular lot in Chillicothe, and in transit the lumber is burned up, the vendor shall have his lien upon the lot for the amount so fur- nished. Such is not the true construction of this law. The legisla- ture never so intended.' , These cases are next approvingly referred to in a case where dower, only, not diversion, was involved, and referred to to show that they did not sustain the position of the counsel who cited them." The next case was decided on a question of practice, not of diver- sion, but it holds that it is not the furnishing of materials and labor alone, which creates this lien, but it is the contract of the parties, and the furnishing of labor and materials under it, which have that effect.' In the next case, where diversion of materials was claimed, it was held, there was no error in the decree for a lien if it appeared the materials were purchased to be used in improving the lot on which it was attempted to enforce the lien.* Subsequently it was held, that the testimony showed the material in this case was purchased for and used in the buildings on tlie lot, and the lien sustained." But in a later decision, in the same case, though the lien was sustained, there is some uncertainty created by the language of the court, witli regard to diversion of materials for other purposes than im- provement of other property of the owner who purchased them, it being held, that as between the owner and materialman, diversion of part of the materials would not release the lien, and in the same decision that to claim exemption from the lien on this account the proof of the quantity diverted should be clear.' If such proof were clear, it would seem to follow from the decision that there would be no lien for the material so diverted. • Hunter v. Blanchard, 18 111. 318. ' Gove V. Gather, 23 111. 634. 3 Sutherland v. Byerson, 24 111. 518. •> Croskey v. Corey, 48 111. 442. ' Corey v. Croskey, 57 111. 251. « Chicago Artesian Well Co. v. Corey, 60 111. 73. 60 Mechanic's Lien Law. In the next case, wherein the question was whether or not the owner made the contract, whether the wife was Hable for the con- tract of the husband, it was held, it is the contract of the parties and the furnishing of labor or material under that contract, that creates a lien under the statute.' Again, where the question was as to labor done and materials furnished after rescission of the contract, the court held, where no part of the work is done on, nor any part of the material attached to the premises there is no lien, and the leading case on this point is cited as authority.' The section of the statute under which these decisions are reti- dered would be relieved of all ambiguity, and justice to all secured if it read, after furnish materials, " which may be used in the con- struction," or as follows : " That any person who shall, by contract, express or implied, or partly expressed and partly implied, with the owner of any lot or tract of land, furnish materials or perform services as an architect for the purpose of, or furnish labor, or perform services as superin- tendent in building, altering, repairing or ornamenting any house or other building or appurtenance thereto on such lot, or upon any street or alley, and connected with such building or appurtenance, shall have a lien upon the whole of such tract of land or lot, and upon such house and appurtenance, for the amount due to him for such labor, material or service, but as between purchasers, and in- cumbrancers and other creditors the lien for materials shall be held to secure only the amount -due for what are used on the premises improved, the lien for architect's services only in case the work be undertaken." In view of these decisions, can a court of equity construe and ad- minister the law as if it so read ? As has been seen, a number of decisions go no further than fur- nishing of the materials as a requisite for the lien. Will the leading case, directly in point on this question, stand review? The section at that time read, "for," not " in " building ; was even stronger than the present section. But is its interpretation of the legislative intention correct ? "Was not and is not that intention to make the realty a security for what is furnished for the purpose of, as well as done in its improvement? It would be a hardship where lumber was destroyed in transit, and for that reason was not 1 Wendt V. Martin, 89 111. 139. » Horr v. Slavik, 35 App. 140. Necessary Eequisites oe Oeigikal Contractor's Libk. 61 attached to the premises, to enforce a lien for it ahead of one for him whose himber did go into it. But in that case both owner and purchaser would be blameless. A court of equity would violate its character and duty to so enforce it. The equity existing in favor of him whose material went into the property is strongest and would prevail on general equity principles. So it might be asked, if more material is ordered than is used, has the materialman a lien for that not used as well as that used ? As between him and the owner why not ? Must he either go to the expense of freighting back his ma- terial, probably deteriorated by exposure, or leave it to be destroyed where delivered ? Would not equity put the burden on him whose fault was great- est ? Would it make the materialman bear the burden of an im- provident buyer's reckless calculations ? In the very nature of things the work must be done to entitle him who did it to a lien. In its very nature delivery of material by the seller thereof completes his obligation as fully as doing the work by the other. Could the leg- islature have intended that he who in good faith delivered his material on or at the premises should do more than the nature of his business required, than universal usage regarded as completion of Ms contract ? It is held that the words used in tl'e statute must have their usual and natural construction, unless some absurd or injurious conse- quence would result, not foreseen or intended by the legislature.' Apply this to the language and intention of the legislature here. Could it intend to exact more of him than lay in his power to do ? Could it define completion on his part to be more than law or busi- ness or reason ever before defined it to be? If delivery of his material, parting with control of it, completes his contract, does not the requisition that it must be attached impose an impossible obli- gation on his part, and make his completion of his contract a trap and snare ? Does the act, so construed, give him any security at all ? Does it not leave him completely in the purchaser's power ? Does it not enable the purchaser, by his fraudulent, or his ill-advised act, to nullify the intent of the statute? The expression, " comple- tion of a contract," is a relative one. The legislature could contem- plate no more than that the respective parties should do what was completion on the part of each. It would be as great, but no greater, hardship to hold that the owner must use or sell his build- ing before the contractor who had done his work could enforce his ' Martin v. Swift, 130 111. 488. 6B Mbchanio's Lieu Law. lien, as to hold that he must use the material before the material- man who delivered it could enforce his. This law does not contem- plate reliance upon honesty of purpose and personal integrity. It contemplates reliance upon security in the property proposed to be improved. For this reason it requires the sale to be with reference to a particular lot or tract of land that the seller may decide whether or not he regards that lot or tract of land as adequate security for his risk, and act accordingly. And when he delivers it with regard to that security he is entitled to the security. If there were a contract to deliver material for the improvement of lot 1, and the materials were used on lot 2, suit on that contract to enforce the lien on lot 2 would fail. It is too weU established that the material must be bought to improve the lot it is used on.' In such ease the lien could be enforced, but it would have to be done, not under that contract, but another, an implied contract to pay for what was used on lot 2. These are hypothetical cases the court presents. On the other hand, take the case of deliberate diversion by the purchaser ; where he sells the delivered material and appropriates the proceeds ; where the seller seeks to enforce the lien only against him, is not the equity for such enforcement of equal strength to that raised in behalf of him whose materials were used in consequence of the owner not receiving the first material? Suppose in cities where blocks of buildings of the same character (exact duplicates) are erected, A. and B., owners respectively of adjoining lots 1 and 2, decide to so improve them. A. buys materials to improve lot 1, B. buys from another party the same class and quantity of materials to improve lot 2. When the materials are delivered, unknown to the sellers, A. and B. exchange materials and so erect their houses. He who furnished material for lot 1 could not assert his lien on lot 2, for he had no contract with the owner of that lot, aud did not furnish his materials to improve it, and vice versa. If this decision be correct, the diversion of materials would bar liens on either property. Would a court of equity permit such jugglery under this statute ? In most of the States the actual use of the materials is not requisite if they were furnished for a particular building or im- provement,' and a contrary rule is held on similar statutes to that of Illinois.' By very distinguished authority it is held : — To require 1 Hill V. Bishop, 35 111. 307 ; Croskey v. Corey, 48 id. 443; Wendt v. Martin, 89 id. 139. » Jones on Liens (3d ed.), sec. 1829. Necessabt Requisites of Original Contractor's Lien. 63 direct and positive testimony as to each specific article delivered, that it was in fact used in the building, would make the Mechanics* Lien Law more of a burden and a trap than a blessing and a help.' In the sparse settlements of early times materialmen could and did know the progress of improvements and were able to keep watch of what purchasers were doing. In the populous cities that now crowd this State, the valst volume of such business makes such an impossibility. It would require an army of men for material dealers to see that their delivered goods were attached to improve- ments, impose an obligation that would weigh down and wreck their business. The legislature could intend no such hampering of one of its most important industries, nor to delude those engaged in it by a fancied security, easily made to,vaui8h by the unknown and unpreventable act of the owner who deliberately imposed upon their faith in him and in the law. The course of our State's legislation is proof of the recognition of these facts, and a change in the phraseology of the statute in conse* ' quence. The act of 1825, the first passed with relation to liens, awards a lien to whoever has "furnished materials, which shall have been used in the construction." The act of 1833, the next passed, "which may have been used in the construction." The act of 1839-40 drops this condition and reads, " for erecting or repair- ing." The act of 1845 and the act of February 16, 1861, use the same language. The act of February 14, 1863, applicable only to sub-contractors, " in building ; " that of same date, extending liens where the work was done over the lot line, "for building." The act of April 6, 1869, and subsequent acts, " in building."' As will be seen, the words, " for" and "in," were used in differ- ent acts of the same date, February 14, 1863. The legislature must have intended the same thing by both expressions, but the omission in all legislation of, "which shall (or may) have been used in the construction," subsequent to the acts of 1825 and 1838, must have been done for a purpose. That purpose could be but one, to give the lien when the materials were furnished. The legislature must have considered the requirement, " used in the construction," as being too strict, as being short of doing justice to those who had gone to the limit of their ability and duty in furnishing materials for the purpose, and have omitted it and used other language for the express purpose of giving them a lien when they had furnished ' Justice Brewer, Rice v. Hodge, 36 Kans. 164. " See respective acts in Appendix. 64 Mechanic's Lien Law. the materials. The history of our legislation on this matter can bear no other construction as to legislative intention. The earlier decisions must have been made with the earlier acts in mind, the court's attention not called to the change in the law, and the later decisions followed these as authoritj', as the court says in Clark v. Manning, 90 111. 380, overruling Fish v. Stuhhings, 65 id. 492, and Powell v. Webber, 79 id, 134, that the act of 1861 seemed not to have been considered in their rendition, and they were, in consequence, erroneous. Take the section as it reads. The word " in," Webster defines, is used in a variety of relations, as " in respect to, or consideration of ; " " on account of ; " " according to, and the like ; " " in health," etc., meaning a state or condition. The language of the section is not in the building, but in building. It is not a strained construc- tion to define it, " on account of," " for the pui-pose of," " during the course of," or, " while in progress." The other sections of the act sustain this contention. Section 5 makes the bill or petition sufiicient, if it contains a brief statement of the contract on which it is founded, if expressed, or if the work is done or materials 2,xq furnished under an implied contract, if the bill or petition so states. The statute itself does not require the allegation that the materials were used. Section 17 expressly states that no incumbrance upon land created before or after the making of a contract under the provisions of this act, shall operate upon the building erected, or materials furnished, until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied. Section 35 requires the contractor, on demand, to give a statement showing, not whose material has been used in the building or improvement, biit who are furnishing material, and what is due or to become due for materials furnished. Construing the whole act — the different sections together — the weight of its authority favors conference of the lieu when the materials are furnished. These are chancery cases. Courts of equity are courts of flexible powers. The peculiar province of equity has ever been to remedy the law wherein it is defective by reason of its universality. On this principle the hardships of clearly expressed and absolutely cer- tain contracts are relieved from, when the same would be enforce- able at law. It acts upon moral grounds, and to secure and enforce justice. It is a purchaser's right to reject defective material. His refusal to receive or use it would bar both lien and common-law Necessary Eequisites of Obiginal Contractoe's Lien. 65 obligation to pay for it. His sale, on the ground of being defective, and appropriation of the proceeds, with imniunity from lien liability, an excuse of too easy invention for safely appropriating the prop- erty of another, for a court of equity to countenance. A more liberal construction has been given this statute in favor of those whom it was designed to protect where only between those parties and owners matters were at issue.' Where these parties alone con- test, to hold that the lien for ma,terials furnished covers the property they are furnished to improve, is for the court of equity to be backed by the strongest moral, equitable reason, as well as statutory intention. If the diversion were done without the knowledge or collusion of the seller, he should not be suffered to be robbed of his rights by the fraud of the purchaser, and left only to the vengeful proceed- ing of an action on the case. While this would bring the defraud- ing owner who bought to just punishment, it might not secure the seller in payment for his materials. , In such case the court can act on the general chancery principle that he who asks must do equity, that a court of equity aids only him who comes with clean hands, and that a party who perpetrated the fraud would be estopped to plead his own tort in order to escape liability. That having bought the material to be used in his own improve- ment, he would not be heard to deny that it was so used, or to set up as a defense a diversion that he alone occasioned. The purpose of the law is to secure materialmen as well as those who, as con- tractors, do or have work done on real property. Not to enforce the lien in such case would be to defeat the purpose of the law through the frai^d of the purchaser, and inability of the seller to prevent it. Nor is it difficult, where other's rights intervene, to do justice to all under the broad jurisdiction and ample powers of a chancery court. This would be done by holding that if the owner purchase material to improve a lot, and -sell part or all, the lien therefor will cover the lot, so far as tlie owner is concerned. If others intervene whose materials did go into the property, apply the proceeds of the sale, first to payment of their claims, the surplus to him whose material was diverted. In case of incumbrancers and purchasers, ignorant of the purchase of such materials, hold- their rights likewise supe- rior. This would bar the fraudulent purchaser taking advantage of ' Sec. 30, ante. 9 66 Mechajstic's Liek Law. Ms own wrong, do justice to all. In such case does not the latitude of a court of equity permit it to so administer the law, and if no intervening creditor, incumbrancer or purchaser appear, enforce the lien on the property the materials were represented to have been bought to improve ? There has been no adjudication where the controversy was be- tween only owner and materialman, and the current of authority in this State is against the argximent offered. As will be shown here- after, it is held that such petitioner to enforce a lien must aver both that the material was bought to improve the particular piece of. property, and that it was used in its improvement.' The law may be weak in not in so many words establishing the lien of the materialman on the realty when his material is delivered on or at it for its improvement, if such were the legislative intention. The legislature, not the court, may be the sole authority to rectify the error, if error it be. Y"et it may be that our courts, on a review of the authorities and the legislation, would establish a different interpretation of the statute, and award a lien to the materialman when he had completed and performed his contract by a delivery of the material on or at the property he sold it to be used upon, as against the owner who bought of him, and without prejudice to the rights of third parties. ' See chapter 13. CHAPTER IT. PERFECTING THE ORIGINAL CONTRACTOR'S LIEN. Section 109. Contractor must file claim for lien. Character of such claim. 110. Must be against the owner when contract is made. 111. Must correctly describe the property. 112. Must be itemized and particulars necessary. Stating amount due in lump sum not sufficient. Must show dates and amounts of credits. 113. Where different houses, claim must be against each. If one roof cover all, one claim sufficient. 114. Must be properly verified. Cases of defective verification. 115. Of proper verification. 116. Object of claim. § 109. Contractor must file claim for lien. — The making and performance of the contract still leaves the lien an inchoate one. One more step is required to perfect and fix it. The creditor or contractor must file with the clerk of the Circuit Court of the county in which the building, erection, or otlier improvement to be charged with the lien is situated, a just and true statement or account, or demand due him, after allowing all credits, setting forth the time when such material was furnished, or labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit.' § 110. Must be against the owner when contract is made. — The claim must be filed against the owner of the property." This should be the person who owned the property at the time of and made the contract, not the one who owns it at the time the claim is filed, for whoever purchases the property after the contract is made, purchases subject to the lien under that contract, and is bound by it. There would be no objection in event the property had been sold after the contract was made, to filing the claim against both the original owner and subsequent purchaser — the owner at the time the claim is filed. ' Sec. 4, act 1874, as amended; Beck Lbr. Co. v. Halsey, 41 App. 349; see Limitations, | 179. » Campbell v. Jacobson, 145 111. 389. 68 Mechanic's Lien Law. If the owner be a corporation its corporate name should be nsed.^ /The transposition of some of the words in the corporate name is not material, if it make no essential difference in the sense. As where it was alleged that a contract was entered into by one of the parties by the name and style of "The State Board of Education of Illi- nois,'' when by the act creating the corporation, the name given to it was " The Board of Education of the State of Illinois." Although the words were transposed in the contract, the name and style re- mained substantially the same.' § 111. Must correctly describe the property. — The fclaim must give a full and correct description of the property improved, and on which the lien is sought to be enforced. The lien can be enforced only on the property thus described, though it may really extend over other property'. If, for instance, a house be built on lot 1, and the adjoining half of lot 2, the claim describe merely lot 1, the lien would be enforced only on lot 1.^ Hence the importance of a full description. The law contemplates that after the contract is made, time and opportunity is afforded to learn from the records the exact legal description of the property improved, and tliis legal description the affidavit should set forth. It should be such as to give full record notice of the property to create a Usjpendens lien, and if the proceedings are carried to a sale, should be such that the deed of the officer selling would properly convey \fhe property, as well as to give purchasers opportunity to examine before sale into what was to be offered under such sale. As this statement must be sworn to, the petition not, it is even more essential that the descrip- tion set forth in it should be cori'ect, than that in the petition. If in- correct, the error is fatal.' § 112. Must be itemized and particulars necessary. — The statement of account should be itemized ; if for materials, what they were ; with dates of respective deliveries, amounts, prices and credits ; if for labor or services, of what character,^ carpentry, masonry, etc., the dates same were rendered and price or value, with the respective dates of all payments made thereon, and of the amount due after allowing all such deductions and credits ; if for a contract, set it out in full, state the date when made, and ' contract price, when to be performed, when it was performed, what deductions, if any, what for and the amounts, the dates and amounts of payments, and the ' Board of Education v. Greenebaum, 39 111. 610. ' Watson V. Gardner, 119 111. 312 ; Gardner v. Watson, 18 Bradw. 386; Portones V. Holmes, 33 id. 313; id. v. Badenoch, 133 HI. 377. ' Sec. 4, act 1874, as amended. Pekfectisg the Original Contbactoe'b Liei^. 69 balance due after allowing all sncli credits. If the statement fails to set forth the times when the materials were furnished, or work done, it is fatally defective;' equally so if it fails to set forth the original amount due, and credits as made." Such requirements are not met by stating the amount due in a lump sum after deducting credits, without stating any items com- posing the account, or showing what the credits were ; nor by stat- ing that the work, or contract, was completed at a certain time, without showing the time when it was commenced, or during which it was performed, or the period during which the materials were furnished or labor claimed for was rendered.' § 113. Where different houses, claims must he against each. — If one roof cover all, one claim is sufficient. Where the improve- ment consists of a number of houses on different lots and under different roofs, the claims must be filed against each separately, although the contract be an entirety, and the payments are to be made and credited upon them as a whole." The fact that these lots are contiguous and when completed the buildings form in front and rear a solid block, does not alter the rule, if dividing walls and separate roofs make them distinct buildings.^ If under one roof, only one claim need be filed against the whole ; ° and if more than one building be on tlie same lot or tract of land, but one claim is necessary to be filed." If the work be done or the materials are furnished upon distinct premises, the claim must be against each of the se^'eral premises, ac- cording to the value of tiie work and materials incorporated in each, and not against both for the aggregate amount.' § 114. Must he properly Terified — Cases of defective Tcrifi- cation. — This statement must be not merely sworn to, but properly ■Verified. In one case the following affidavit was made to the claim : A., being duly sworn, says he is the authorized agent for B., that B. has performed the labor and furnished the materials set forth in the above statement of claim for a lien, and there is now'due B. from C, for said labor and materials, after allowing all credits and set-offs, the sum of $175, which affiant charges and alleges is a lien upon the ' Campbell v. Jacobson, 145 111. 389. 2 McDonald v. Rosengarten, 134 111: 126; 35 App. 71. 'Bayard V. McGraw, 1 Bradw. 134; McGraw v. Bayard, 96 111. 146; Portones Y. Badenooh/ 132 111. 877; Portones v. Holmes, 33 App. 812. * Note 2, supra ; A. R. Beck Lumber Co. v. Halsey, 41 App. 349. > James v. Hambleton, 42 111. 308; Orr v. N. W. Mat. Life Ins. Co., 86 id. 260. ' St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546. •> Steigleman v. McBride, 17 111. 300; Culver v. Elwell, 73 id. 536. to Mechanic's Liex Law. above-described premises. The court held that this was no verifica- tion ; that it might be true, whether performed in time or not, to enforce the lien. It was merely a statement that the claimant per- formed labor and furnished materials, not as set forth, but set forth." So in the following affidavit ; L., as agent, sold the materials men- tioned in the above statement, and said balance of $113.77, above set forth, is now due said company on account of materials so fur- nished for the building situated upon said premises, heretofore de- scribed, was held to be no verification, and a statement with proper verification being a statutory condition precedent to the enforcement of a lien, the failure to provide such affidavit prohibited the enforce- ment of the lien." § 115. Of proper yerification. — The verification should be, if the claim be upon a contract, that it was made, at the time, for the purpose and for the consideration, as set forth in the statement; that the work under said contract was commenced, performed and completed at the times as therein set forth ; that payments thereon were made' at the dates and in the amounts as therein set forth ; that all credits to which the said (owner) is entitled are as therein set forth, and that, after allowing all sucli credits, there is due the claimant from said (owner) the amount as therein set forth, which is yet due and unpaid. If for materials, that the same were purchased to be used in im- proving the property as described, and were so used ; that they were delivered at the times, and as set forth in the statement, and at the prices as therein given ; that the amounts and dates of payments, and all credits to which said (owncV) is entitled are as therein set forth ; and after allowing all such credits, there remains yet due and unpaid the claimant, from said (owner), the amount as therein set forth. If for services as architect, or superintendent, or labor by mechanic or laborer, that such services or labor were rendered and pei'formed at the times set forth in the statement ; that the prices agreed upon, or value of such services, were as therein set forth ; that all payments made were in the amounts and at the times as therein set forth ; and that after allowing all credits to which said (owner) is entitled, there remains a balance due, owing and unpaid the claimant, from said (owner), the amount as therein set forth.' The affidavit may be made by owner, agent, or employe^. ' McDonald V. Rosengarten, 134111. 126; 35 App. 71. " A. R. Beck Lumber Co. v. Halsey,,41 App. 349. ' See form of verification, Appendix, page 201. Pekfbcting the Okiginal Contractok's Lien. 71 § 116. Object of claim. — The purpose of requiring the claim to set forth the time when such materials were furnished or labor per- formed, is to enable those interested to know from the claim itself that it is such as can be enforced ; and verification by affidavit is required as a guarantee of the claim in this as in other respects ; and all this is, by section 28 of the act, indispensable to the enforcement of the lien against creditors, incumbrancers, or purchasers.' If their examination of the claim as filed discloses that it is not properly made, they may disregard it and deal with the property as if no claim existed. Thus far, the law has been given as applicable to the parties — original contractor, materialman, architect, superintendent, laborer, or pther person — who dealt directly with the owner. As the sub-contractors, or others, who seek to enforce their liens on the property must proceed by petition the same as these, it will be well to ascertain their rights before treating of 1;he petition and subsequent procedure. 1 McDonald v. Rosengarten, 134 111. 136; 35 App. 71. CHAPTER T. SUB-CONTRACTOES. Section 117. Earlier laws, no lien to sub-contractors. Change in laws. 118. Liability of owner where notified. Sub-contractor should serve notice when he makes contract, 119. Amendment of 1891 as to form of statement; sec. 35. 130. Necessity of statement under law of 1887. 121. Oases under law of 1887. 132. Section 35, amended in 1891 . Statement not condition precedent to demand for payment. Owner's payments without statement probably not illegal. _ Contractor must furnish his statement if demanded. Owner's only safety is to demand statement. Sub-contractor's only safety is to serve notice. 138. Sub-contractor's lien attaches at date of original contract. Only to extent of contract price. All liens cannot exceed this. 124. Original contractor' must furnish statement on written demand. Penalty of not furnishing. What this statement must contain. Statement by sub-contractor to contractor. 125. Effect of this statement. Owner must pay contractor as soon as he makes it. Defective statement, owner paying on faith of it, protected. 136. Former section for benefit of sub- contractor. Present section for benefit of owner. 137. Notice to owner makes statutory contract between owner and sub-contractor. 138. Owner's obligations. 139. Sub-contractor's obligations. Work must be pursuant to original contract. Original contract must be performed in some way. Payment must be according to original contract. Payment in land. Contract price distributed. Sub-contractor must show original contract, either performed or abandoned. ' 130. Extent of sub-contractor's lien. Cases where more extensive than contractor's lien. Lien to each class dependent upon independent provisions. First twenty-eight sections apply to original contractor only. Thereafter to sub-contractors only. 131. Laborers preferred. Have absolute lien for twenty days on ten per cent of value of work done, which owner may retain. Lien good where contract abandoned. SUB-OONTRACTOKS. 73 Section 131. Laborers pro rate, and with each other only 133. Owner has ten days to pay sub-contractor. 133. Suit at law against owner and contractor. Judgment dependent on right to lien. 184. Wrongful payments are those: Made after notice to owner by contractor's statement. Made after notice served by sub-contractor. As to laborer, if made within twenty days and in excess of ninety per cent. Uncertainty of obligation to demand contractor's statement. 135. Subcontractor's lieu limited to amount due original. 136. Abandonment by original contractor. Remedy of sub-contractor. Liability of owner. Sub-contractors can recover only under section 45. 137. Lien for work done after abandonment prior to lien for work done before. 138. Fraudulently low price in original contract. Owner must pay sub-contractors a fair price. Fraud must be clearly establitelied. 139. Fraud does not aid in establishing lien. Nor excuse delay through carelessness or oversight. Case of. / § 117. Earlier laws, no lien to sub-contractors.— The earlier acts allowed no lien to the sub-contractor. The\' proceeded in accordance with the universal practice in all other business affairs, that a person should be held only on the contract he made, and by the party with whom he made it, and for reasons heretofore given, were enacted to secure that original contractor, l^ot until 1863 was any recognition given to sub-contractors.' Then the statute for their benefit applied only to a few counties. ISTot until 1869 were the provisions for their benefit made a part of tbe general law and applicable to the whole State. There has been a steady advance in statutory effort to protect the unknown subordinates whose material or labor should add to the value of real estate by building improve- ments thereon. Somewhat of philanthropy animates this progress. The legislature seems to have regarded the laborer less capable of caring for himself, more worthy its protection than any others. Its latest effort makes his claim an absolute lien to a certain extent for a certain time,'' thereafter a preferred one to that of materialmen, or other sub-contractors of a higher grade.' This progress is based upon recognition of the progress in build- ' See act 1863, Appendix. ' Sec. 33, act 1874, as amended. ^ Sec. 34, act 1874, as amended. 10 74 MECHANICS Lien Law. ing operations, the present methods of business. No one party does or can fJo the entire work. The extent of the field enforces special- ties. Stone and brick work, carpentry, plumbing, plastering, steam, fitting, roofing, structural iron, electric apparatus, decoration, are each special branches of trade, distinct vocations, some of which require licenses to prosecute, and are as worthy protection as the sole contractor who in primitive day did tlie entire work. § 118. Liability of owner where notified. — Though the owner and sub-contractor make no contract with, are absolutely unknown to each otlier, the statute, on conditions, brings them into contract relations by statiitory force. Where the owner is notified according to law that the sub-contractor has been employed, the existing law not only makes him liable to that sub-contra'ctor, but primarily so from the date of that notice.' In such case he is obliged to pay, not the contractor whom he has directly dealt with, but the sub-con- tractor, to credit such payment on his own promised payment, and pay the balance only to the original contractor." This notice may be given to the owner either by the statement of the original con- tractor, as provided in section 35, or by the sub-contractor, as provided in section 30 of the act of 1874. , There is no legal reason why the sub-contractor should not serve this notice on the owner as soon as he makes his contract. If he wishes to secure his rights beyond question he should do so. Appre- hension of giving oflEense to his immediate employer, the original con- tractor, doubtless deters such action, but it is the only safe method of fixing and securing his lien that the law places in his power. § 119. Amendment of 1891 as to form of statement.— The amendment of 1891 makes material changes in the law relating to sub-contractors, the duties and liabilities of owners and original contractors. As the decisions to date have been rendered under the law as it stood prior to this amendment, as no adjudication has been made upon the present law, it will be well to compare the sections wherein these changes are made. Section 29, as it now reads, was passed June 16, 1887. At the same time section 35 was enacted as appears in the amendment of that date.^ Under this section it was held, with regard to the form of statement, that the following statement of the original con- tractor, to wit : ' Sees. 29-33, 34, 35, act 1874, as amended; see form of notice. ^ Sec. 34, act 1874, as amended; Appendix, page 187. * See act June 16, 1887, Appendix. SUB-C0NTKACT0K8. I'O " The following persons were in my employ on said job, viz.: Schultz, Bernard Wieska, Robert Wieska, Otto Paiily, Krampke and Charlie, which all amounts to $125, and which is paid in full." was insufficient. That it did not state the number, names, the rate of wages of any workmen, how much was to be paid to either of them, nor the terms of the contracts with any of them, and was, therefore, not sufficient in form or substance." The present section modifies the requisites of this statement, de- mands less parti(iular details, requires the original contractor to state simply the number of persons in his employ, and of the sub- contractors or other persons furnishing labor or material; giving their names, and how much, if any thing, is due or to become due each of them for work done or material furnished.'' The rate of wawes, or terms of contract, need not be stated, but what amount is due or to become due each must be stated. The statement o£ a lump sum due all would be as vicious under the present as under the former law. The owner must require and be informed of what is due or to become due each, that he may reserve and pay to each what is coming to him. § 120. Necessity of statement under law of 1887. — It was also held, under the law of June 16, 1887, that the owner must require such statement, not merely before he made each payment to the original contractor, that he must not only retain what was so shown to be due to such sub-contracting parties, but pay it over to them, and not to the original contractor. That this section affected the- rights of the parties in their duties and relations to each other under the law, and was not a matter affecting the remedy.^ That it was not a privilege, but obligation of the owner to demand this state- ment and so make his payments. That the section's provisions were mandatory ; and any payment made by the owner, without requiring such statement, was at his peril, was not rightfully made, was in violation of the rights and interests of the sub-contractors and persons named in section 29, and would not be taken into account in estimating the amount due the original contractor by the owner in an action by the sub-claimant to enforce his lien. That if such sub-claimant served his^notice according to the law, within the forty days allowed him, it would secure his lien, notwithstanding ' Weiska v. Imroth, 43 App. 347. ° Sec. 35, act 1874, as amended. » Hughes V. Russell, 43 App. 430. 76 Mechanic's Lien Law. the owner's having paid tlie original contractor prior thereto, if he had paid him witliont such statement.' That while the owner could not be compelled to pay more than his original contract price, if he had paid properly; that is, after receiving the original contractor's statement and reserving what it showed to be due the sub-contractors for them ; if lie paid improperly, that is, without so doing, he would be compelled to pay more than the contract price, for such payments would not be reckoned as against the claim of the sub-contractors. The decisions are broad, but follow the letter of the law.' § 121. Cases under law of 1887. — Where the house was to be completed on November 1, the last item of material was delivered on November 7, and the materialman served notice on November 17, and the owner had paid the principal contractor prior thereto, without requiring his statement, the lien of the materialman wa& sustained.' Again, the contractor was to build for $4,750, by contract of May 15, 1889. On July 6, 1889, the owner took his statement, showing due to sub-contractors, mechanics and workmen, $300.01 ; on August 3, 1889, another statement, showing due, or to become due, $1,190.02, making in all the sum of $1,490.03, but no further state- ments were taken or required ; and, after the last statement, the contractor was paid in full, and the materialmen delivered the ma- terials they conti-acted to deliver, commencing August 23, 1889, and amounting to $675, and extra material and labor amounting to .$76.20, completing the last work October 15, 1889, and served notice on the owner October 23, 1889. It was held, the owner, although he had paid all due the contractor prior to Such notice, was liable for making such final payments without demanding further statements, and the materialmen adjudged a lien for the amount of their whole bill, $751.20." Where the contract was for $2,896, and the owner paid $2,808.82 without demanding any statement of the contractor, and the materialmen served notice within forty days from maturity of their bills, amounting to $172.10, it was held, the owner was liable and the lien enforced for payment of that amount'.' ' Butler & McCracken v. Gain, 128 111. 23; adv., 29 App. 425; Conklin v. Plant, 34 id. 364; Chicago Sash, Door & Blind Co. v. Shaw, 44 id. 618; Hintze v. Weiss, 45 id. 220. » Sec. 35, amendment June 16. 1887. ^ 3 Conklin v. Plant, 34 App. 264. * Chicago Sash, Door & Blind Co. v. Shaw; 44 App. 618. = Hintze v. Weiss, 45 App. 230. Sub-Contractors. 'i'7 The efEect of this requirement of the statute, and its apparent con- flict with duties imposed and rights conferred upon the sub-claimant, and h'abilities that he is subjected to by requirements in other sections, was elaborately discussed in the case referred to, wherein the owner neglected to require the contractor's statement before final payment. The conclusions reached were as follows : ' " The sections of chapter 82, Revised Statutes, as amended and in force July 1, 18S7, necessary to be considered in the determination of this question, provide as follows : Section 29 provides that every sub-contractor shall have a lien for the value of labor and material furnished, but the aggregate of all liens shall^not exceed the original contract ^rice, and the Owner shall not, in any case, be compelled to pay a greater sum than such contract pride, unless payments be made to the original contractor or to his order in violation of the rights and interest of the persons intended to be benefited by section 35 of the act, and except in case of a fraudulently low price. Section 30 provides for the giving of notice by the sub-contractor, and that such notice shall not be necessary where the sworn statement of the contractor, provided for in section 35, shall serve to give the owner true notice of the amount due, and to whom due. Section 33 provides that no claim of a sub-contractor shall be a lien under section 29, except so far as the owner may be indebted to the contractor at the time of giving such notice as aforesaid of such claim, or may become indebted to him afterward as such contractoi . Section 35, referred to as above, provides that the original contractor .shall, whenever any payment of money shall become due from the owner, or when- ever he desires to draw any money from the owner on such contract, make out and give to the owner a statement, under oath, of the name of every sub-contractor, giving the terms of contract and how much, if any thing, is due or to become due to tliem, and the owner shall retain out any money then due or to become due to the contractor, an amount sufficient to pay all demands that are due or to become due such sub-contractors as shown by sucii contractor's statement, and pay the same to them according to their respective rights, and all payments so made shall, as between such owner and contractor, be considered the same as if paid to such original contractor. It further provides that until snch statement is made, the contractor shall have no right of action or lien against the owner on account of such contract, and any payment made by the owner before such ' Chicago Sash, Door & Blind Co. v. Shaw, 44 App. 618. YS Mechanic's Lien Law. • statement is made, or without retaining sufficient money, if that amount be due, or is to become due, to pay the sub-contractors as shown by tlie statement, shall be considered illegal and made in violation of the rights of the persons intended to be beneiited by the act, and the rights of such sub-contractor to a lien shall not be affected thereby. It is contended on the part of the defendant in error that it was wholly unnecessary for her to take the sworn statements she did take, and that she was not bound to demand any statement upon making a payment to the contractor or his order, but that she might require such statement, or not, at her pleasure. And it is said that the case of Butler and' McCracken v; Gain, 128 111. 23, sustained this contention. We do not so understand that decision. The ex- pressions used must be held to refer to the facts of that case, and to be applicable to, like conditions only. It cannot be contended that the legislature designed that the statement should only be re- quired as to claims of which the sub-contractor had been already given notice. If notice has be^n served by the sub-contractor, the statement is useless both to him and the owner, for he is already secured and^the owner already has the requisite information. In that view of the statute it would be a pertinent query in what way the legislature designed that the sub-contractor should be " bene- fited" by the statute if he must first make himself secure before the benefit is bestowed upon him. In the case above referred to, Butler and McCracken claimed a lien but had never given notice,, and the owner had received no notice by any statement. The claim of a lien was founded only upon the fact of furnishing material,, and the owner's neglecting to take the sworn statement ; and it was held, that the right to a lien cannot be based merely on an omission,, but that section 35 was only intended to protect , persons who com- plied with the provisions of the statute so as to be otherwise entitled to enforce the right to a lien. The only point in that case was that Butler and McCracken not having taken the necessary steps to- perfect their lien, were not in a position to complain of the neglect to demand a sworn statement from the contractor. That case was considered by this court, and referred to in ConJclin v. Plant, 34 App. 264, and was not then regarded as sustaining the claim now made by defendant in error. The provisions for the benefit and protection of sub-contractors by requiring a sworn statement and declaring payments made before such statement illegal, were introduced into the statute in 1887 by t SUB-CONTRACTOKS. 79 amendment. The persons intended to be benefited by section 35 are named in the section, and include sub-contractors, who are to be protected in their rights by requiring the owner to take a sworn statement intended to disclose such rights. And the section pro- vides : "Any payment made by the owner before such statement is made, * * * shall be considered illegal and made in violation of the rights of the jiersons intended to be benefited by this act, and the rights of such sub-contractors, mechanics, workmen or per- sons furnishing material, to a lien, shall not be affected thereby." At the time of this amendment, section ?>3, above referred to, was not changed, and it is claimed that by reason of that section plain- tiff in error could not have any lien. If this section is found to be irreconcilably inconsistent with the amendment, the latter must pre- vail, but the various sections should be construed together so as to give some effect to each if possible. Prior to the amendment, the original contractor could lawfully collect or order paid to others money due on his contract as rapidly as it became due, and enforce his rights by action regardless of any claim of a sub-contractor who had not already given notice of his rights, and the owner had a right to disregard the claims of every sub-contractor who had not served notice of a hen. It was the evident intention of the legislature to impose upon the owner, by the amendment, a duty for the benefit of such persons, by requiring a sworn statement to be taken by the owner, and pro- viding that payments made without such statements should be regarded the same as not having been made, and as though the sums so paid were still due, so far as the right to a lien is concerned. It seems that it could not have been intended that the amount due the contractor, referred to by section 33, should be lessened or ex- tinguished by taking account of such payment as the statute declared to be illegal, not affecting the right to a lien. The rational construction of section 33 would seem to be that, taking account of legal payments only, that is, such as are not made in violation of the statute, the owner shall not be liable for more than the balance due. This affords to him who obeys the law full and ample protection in harmony with the like provisions, as amended in section 29, where it is provided that the owner shall not be liable for any more than the contract price, unless payments are made in violation of the act, in which event it is plainly the legis- lative intent that he may become liable for more than the contract price. If the owner obeys the plain provisions of the statute and 80 Mechanic's Lie^ Law. takes the statement, but sucli statement does not serve to give him notice, and no notice has been -served by the sub-contractor, then he may make payment of the amount due, and will not be liable for any more than the contract price. This construction leaves every section of the statute to have some force. To construe the statute otherwise would be to defeat the object of the amendment and leave the law as it was before, making the passage of the amendment a vain and useless act. Defendant in error could not lawfully pay to the contractor or his order, without a sworn statement, to the injury of plaintiff in error and against the express prohibition of the statute. This is the very thing that the legislature intended to protect the sub- con tractor against, and defendant in error having paid to the contractor or to his order, without such statement, sums far in, excess of the amounts due plaintiff in error, such payments were by the statute made illegal, and the right of the plaintiff in error to a lien was not affected thereby.'" § 122. Section 35 amended in 1891. — Section 29 remains un- changed, and yet refers. to section 35 as at first, but the language of the latter section, as amended la 1891, is very different from the one repealed. The former made the original contractor's statement a condition precedent to his demand for payment. He could not demand pay- ment or enforce his lien until the statement was furnished. The present section relieves him frona this burden, has no provision pro- hibiting his demand for payment, or enforcement of his lien with- out snch statement. It simply imposes a penalty of $50 on the original contractor for failure to furnish such statement within five days after the owner's demand therefor according to law. The former, in express words, made the owner's payments with- out such statement illegal and in violation of the rights of the per- sons named. The present section has no language thus character- izing payments so made. The former provided the same penalty of $50, recoverable by the owner for the contractor's failure to furnish the demanded state- ment, and in addition gave him the protection of immunity from action until that statement was furnished, whether demanded or not. The present section furnishes no such protective right. The author is of opinion, however, if the owner dem9,nded such state- ' See also Boals v. Intrup, 40 App. 63; Beck Lumber Co. v. Halsey, 41 id. 349; Floyd V. Eathledge, Id. 371. Sub-Contractors. 81 meat before action brought, the contracter could not maintain a lien proceeding until he had furnished it. The former section's phraseology was, the owner sJiall pay the amount that he was notiiied was due to the sub-contractor to him. The present section omits this provision altogether, while section 34, instead of making it mandatory, reads, he may so pay it. The present section reads, the contractor shall furnish the statement when the owner demands it in writing. No obligation is upon the owner to demand it, save by implication and inference in section 29. In itself it is permissive, a privilege which the owner may exer- cise, but it is a duty which he should exercise, considering other portions of the law. The legislative act tliat swept out the onus of the obligation pnt upon the original contractor to present this statement with his de- mand for payment, and made it an absolute condition precedent to euch demand, with the same stroke swept out the protection awarded the owner in immunity from suit until it was done, the protection awarded the persons named in section 29, by making his payment illegal and in violation of their rights, and in providing that he shall pay to tliem what he is so notified is due them. Section 35 is not only a weaker section as it now reads, but weaker for the repealed section's existence that it is substituted for. The owner may say to the sub-contractor that the law empowered him to serve notice of his sub-contract on the day he made it, before lie did a stroke of work, or delivered a dollar's worth of material ; that if he slept upon liis rights, he imperiled them by his own con- duct ; that he (the owner) obeyed his moral and legal obb'gatiou to pay his own contractor as he agreed to do ; tliat there was no law forbidding his so doing, and that he was ready to respond to the sub-contractor's claim so far as he owed the original contractor at the time of the notice, but no farther. Tliat this law was one under which the courts of his State instructed him the letter, not the spirit of the law must be obeyed, and this only would he do as was least inconvenience to him. On the other hand, the sub-contractor could insist that the pro- visions of section 29 now make the owner's payments in violation of the rights of persons intended to be benefited by section 35, illegal and in contravention of their rights ; that he is the person whom that section has in view ; that both sections must be construed to- gether to properly interpret the act ; that not to regard the privi- lege or power conferred upon the owner to demand the original 11 ' S2 Mechanic's Lien Law. tibntractor's statement prior to any statement as more than permis- sive, as directory, would be to make the law, as to him, a vain and useless act, and that if he gave his notice to the owner according to- law within the forty days allowed him, it secured his impending lien on what the owner owed the original contractor during that period,, if he had paid it without requiring such statement. Only a decision of oUr Supreme Court can settle the uncertainty occasioned by this legislation. The onl3' safe course for owner and sub-contractor to pursue, until such decision is rendered, is for the owner to demand the statement before he pays, the sub-contractor to serve his notice as if no such provision existed. § 123. Sub-contractor's lien attaches at date of original con- tract. — The original contractor's lien cannot antedate his contract.' The sub-contractor's lien, when perfected, regardless of when he makes his contract, is, by the statute, carried back to, and attaches at the same date as tliat of the principal contractor. The statute regards it as part and parcel of the original contract, no matter when it is made, and makes it a lien upon the property from tjjat time, and as the work progresses, as much as the lien for the original eon- tractor's labor or materials." But unlike the original contractor, whose lien is an absolute one, upon the whole of the owner's inter- ests in the property, the sub-contractors have a lien on that property only to the extent of the original contract price for the improve- ment. The aggregate of all liens of this class cannot exceed the price stipulated in the original contract. In no case shall the owner be compelled to pay a greater sum for or on account of such house, buildings, or other improvements, than the price or sum stipulated in the original contract or agreement, unless payments be made to the original contractor or to his order, in violation of the rights and interests of the persons entitled to be benefited by the provisions in section 35 of the act," or after notice of the sub claimant's claim properly served.' § 124. Original contractor must furnish statement on writ- ten demand. — Those provisions in the existing statute are as fol- lows : The original contractor shall, as often as requested, in writing, by the owner, lessee, or his agent, make out and give to such owner, lessee, or his agent, a statement of the number of persons in his em- 1 Nibbe v. Brauhn, 34 111.. 368; Wetherell v. Ohlendorff, 61 id. 383. ^ Sec. 29, act 1874, as amended. ° Sec. 33, act 1874, as amended. SUB-CoNTKACTOBS. 83 ploy, and of the sub-contractors, or other persons, furnishing labor or materials, giving their names, and how much, if any thing, is due or to become due to each of them for work done or materials fur- nished, which statement shall be made under oath, if required of him by such owner, lessee or agent. The owner cannot demand such statement from the sub-contractor, or from any one but the original contractor. The original contractor has a similar right to demand a similar statement, except as to what is to become due, from his sub-contractor.' This is for the original contractor's bene- fit and does not affect the lien, or procedure, one way or the other. Tlie owner can recover before a justice of the peace, a penalty of $50 of the contractor, if he fails to give such statement within five days after demand so made ; the original contractor has like re- course upon the sub-contractor. This mnst not be a verbal, but a formal, written request. This statement must contain : ' 1. The number of persons in the contractor's employment. 2. The names of sub-contractors, materialmen, or other persons he has dealt or is dealing with, who have furnished labor, or materials, or are to do so. 3. The amounts due, or to become due each.' § 125. Effect of this statement. — What effect does this sworn statement have ? On its delivery, can the original contractor de- mand at once payment of what is due him, over and above what he so shows is due his subordinates ; can the owner then safely pay that amount, or must he delay until the forty days have expired within which the sub-contractor is allowed to serve his notice ? In the broadest decision, before cited, repdered under the former more stringent statute, it was held, that if the owner takes the statement, but such statement does not serve to give him notice and no notice has been served by the sub-contractor, then he may make payment of the amount due, and will not be liable for more than the contract price." . When the owner has demanded, the original contractor furnished the statement, botli have done all that the law requires. The con- tractor is then entitled to his money, the owner should pay it promptly, reserving the ten per cent provided for by section 33 of the present law. To postpone the payment for forty days on the ' Sec. 35, act 1874, as amended; see forms. Appendix, pages 197, 199. = See forms, Appendix, pages 198, 200 2 Chicago Sash, Door & Blind Co. v. Shaw, 44 App. 618. 84 Mechanic's Libit Law. theory that some sub-contractor might be omitted and might serve his notice, would doubtless work irreparable injury to the original contractor. The law allows no snch unreasonable, apprehensive action on the part of the owner. He must take that statement as it is made and act upon it. If such statement, through negligence, oversight, or fraud of the original contractor, be false and fail to notify the owner of all whom the contractor owes or will owe, or the proper amount due or to become due those named, if it omit the name of a sub-cjlaimant or state a less amount than is actually due him, and yet purports to be a full statement of all to whom he is indebted and of the amounts that he is indebted to them, the owner can be held only for the notice it gives him, and will be held harmless for any payment that he makes to the original contractor on faith of such statement prior to any notice by such sub-claimant, whose name has been omitted or the proper amount of whose debt has not been given. This ruling in th© owner's favor is supported by further equitable authority. Where injury is done between two parties, equity holds that he should bear the burden who is most culpable. If the state- ment furnished by the original contractor to the owner be at fault and by reason thereof the owner pays him to the extent that such owner has no funds remaining wherewith to pay the sub-contractor's claim, under this established practice the court would hold that the sub-contractor, being at liberty to serve his notice at any time after the date of his sub-contract, was more culpable than the owner (if the latter were culpable at all), who did all in his power by procur- ing the original contractor's statement, and paid on faith of the same, withoiit delay, but before the sub-contractor served his notice, though within the forty days that the law allowed him to serve it. § 126. Former section for benefit of sub-contractor. — It was held that the provisions of section 35 were especially for the benefit and protection of the sub-claimant, an^ were proper for liis protec- tion, since he is not a party to the original contract, nor presumed to be informed of the time when payments are about to be made, or advised when the contractor may become entitled to them. The original contractor may collect or receive from the owner moneys at times not known or anticipated by the sub-contractor, and without the protection of the provisions concerning such "statement. The sub- contractor might be unpaid through negligence or fraud on the part SUB-CONTRACTOKS. 85 of t^e parties to the original contract.' Ttiis decision was rendered while the act of June 16, 1887, was in force. With equal reason and no less force of argument, it may be shown that the present provisions of the same section are for the benefit and protection of the owner, since he is not a party to the sub-contracts, nor presumed to be informed of what they amount to, nor when they are to be paid for. Such knowledge on the part of the owner may be of tlie utmost importance, for he should know how the sub-contractors are to be paid, whether in a portion of the consideration moving from him, if it be other than money, to the end that he may discover whether the sub-contractors will be able to carry out their contracts according to their respective terms ; if the original contractor, taking what is contracted to be given him, whether in property or money, can provide for them as he agrees with them. I^ow before he makes any payment he can thus learn to whom, what for, and in what amounts his coutractor is or will become indebted, and of his safety in the contract he has made. He cannot, if he demands this statement as provided, be sued or forced to make any payment until this is done. The law does not require, but in this provision gives him the opportunity for his own security, to find out if the contractor's liabilities are different from what is thus stated for work and materials furnished for the im- provement on his property pursuant to the contract. If original and sub-contractor fraudulently arrange that the latter withholds his notice until the former can collect all that is coming to him, and then that the latter serve notice and collect again what is due him, this section gives the owner power to force disclosure on the part of the original and thus head off the iniquity. Again, if the original contractor make such a reckless or ignorant bid as will not enable him to carry oat his contract, or if he takes a desperate chance to make one collection for temporary necessity or expediency and then abandon the work, thus leaving his employer and sub contractor in the lurch, exercise of this section's powers will enlighten the owner, before he expends a dollar, and enable him to discharge such con- tractor, nor will he be compelled to pay him more than what is left of the original contract price, after first paying for the completion of the work according to the original contract. It enables him, prior to every stipulated contract payment, to ascertain the progress of the work, in a measure supervise his payments, so that at no time can he be seriously injured, if he observes the legal formulae. ' Hintze v. Weiss, 45 App. 320. 86 MECHAific's LiEif Law. § 127. Notice to owner makes statutory contract between ^pwner and sub-contractor. — By whichever method the owner is so notified, upon receipt of that notice, the law makes a sort of stat- utory contract between the owner and the sub-contractor, though up to that time they have sustained no contract relations, are personally unknown to each other." As in all contracts, there are conditions upon both sides as consideration for their respective performance of that statutory contract. The obligations it imposes are mutual. They are each, in effect, guarantors of the original contractor to thtf other. § 128. Owner's obligations - The owner is, in effect, the guar- antor of the principal contractor to them to the extent of the pay- ment he agrees to make for the whole work. He is obliged, when notified, to see that they are paid so far as that payment will accom-' plish the purpose. The statute permits him to hold it for their sat- isfaction, to pay the principal contractor no part of it until he has required and been assured by that contractor's sworn statement that they have been paid; if not, to pay them as above stated." It gives them the right to look to the owner for protection up to the limit of the contract price, to give it as assurance for payment to their unsecured creditors — the materialmen, mechanics and laborers who supply and render service for them. He should continue re- gardful of their rights and at no time make any of the stated pay- ments called for in the contract as work progresses, or on completion, without at each time first requiring such statement as to whom and what amount such contractor owes at that time, or will become indebted to thereafter. He is not compelled to disclose his original contract to them ;" can be compelled to produce it only on trial,' but he will not be permitted to mislead or deceive them in regard to it. If the owner when called upon refuses to show a laborer or sub-contra(?tor the original contract, and says he will see them paid, and work is done, or material furnished on such assurance, he is estopped to set upi payment in land, or that the original contractor has been fully paid, and a lien can be enforced for payment in money.' § 129. Sub-contractor's obligations. — The statute is not one- sided. These obligations are not imposed upon the owner without the imposition of reciprocal duties and obligations upon these pro- tected persons to the owner. Their extraordinary rights and privi- ' Sees. 29, 34, 35, act of 1874, as amended. s Welch V. Sherer, 93 111. 64. ' Doyle V. Munster, 27 App. 180. SUB-CONTEACTOES. 87 leges are conferred upon certain conditions. They cannot claim liens simply upon performance of what they agreed to do. Those liens are based upon the principal contract with the owner. His contract rights are strictly regarded. Their work must be in pur- suance of its terms, and so carried out as to become part and parcel of it, so as to make their respective claims links in the chain of rights.' tJnder the law as it formerly stood, it was held that the •contractor failing to fulfill his contract was not entitled to a lien, that the sub -contractors and materialmen took their contracts subject to the fulfillment b^ the contractor of his, and were equally bound by it, and if he were not entitled to a lien, they were not ; that when he executed to the owner a release of all claims for mechanic's liens, on compromise and settlement, such a release carried with it a release of all under him, and, in consequence, his sub-contrac- tors and materialmen could not enforce their liens." But for the amendments to the statute, subsequent to this decision, this position would now be tenable. The owner and original contractor may change the terms of the original contract, but they cannot thereby change the rights of the ■sub-contractor. These are based upon the original contract regardless of such changes.' Those who deal with the principal contractor, either in undertak- ing a special part as sub-contractors therefor, or in furnishing ma- terials to or laboring for him (being equally sub-contractors) are, iu effect, the guarantors of that contractor to the owner, except where the contractor abandons the original contract, and with like excep- tion the statute imposes upon all the obligation to carry out the ontire work according to the terms, not only of their respective con- tracts, but also of the original contract. All together must, in any event, take the payment therein specified in satisfaction of their united claims at the times, in the manner and on the terms stipulated.* Their rights depend upon the performance of the original contract. The statute makes them joint obligors thereof. While it gives them the right to demand that the owner shall do all that both it and the contract exacts of him with reference to pay- ments, it does not infringe upon, but preserves his right to demand that all his contract calls for be done in the time, in the manner, as and for what it stipulates. They cannot in law or morals demand ' Sec. 29, act 1S74, as amended. ' Whitcomb v. Eustace, 6 Bradw. 574; Mehrie v. Dunne, 75 111. 239. a Brown v. Lowell, 79 111. 484. * Sees. 29-34, act 1874, as amended; Melirle t. Dunne, 75 111. 239. 88 Mechanic's Lien Law. the owner's performance of payment without the performance in some way of what he pi-omised payment for. They must regard his contract rights with the same sanctity that he regards their statutory rights. If his contract provides for payment in land, goods, or money, they must look to whatever it be for satisfaction. If he make that payment by delivery of either, as promised and the statute directs, he is absolved from all' other liability.' If the principal contractor underestimate the cost of the work, the materialmen and other subordinates, who deal with him, must bear the burden, for the contract price is all that all of them can get for a pro rata distri- bution.' If he overestimate his ability to carry it out, or has taken the contract with fraudulent intent to get one or more payments by playing upon the owner's credulity, and then abandon it, they can hold the owner and the property improved only for what is left, after deducting payments properly made and damages resulting from such abandonment, which include delay and cost of completion.' Where the sub-contractor failed to show upon what terms the- original contractor undertook to build, whether for cash or real estate, when he was to be paid, or that he had ever completed his contract, or was entitled to any thing, either when the notice was served or at any time thereafter, nor was there any evidence as to the value of the work done by the original contractor, it was held he could not recover." He must show the terms of the original con- tract, and what was done under it, either that it has been performed, or abandoned. The statute provides liow he must proceed in either event, as will be hereafter shown. Hence, at the start, the import- ance of the sub-contractor ascertaining wliat that contract is, if the owner does not wish to disclose it, securing his guarantee, or saving risk of loss by keeping out of the business. § 130. Extent of sub-contractor's lien may exceed that of contractor. — The sub -contractors' liens cover the property to the extent of the contract price, even when the principal contractor has no lien. In case of an express contracU, placing completion beyond three years from commencement of work, or placing the final pay- ment beyond one year from the date of completion, or of an implied contract, completion being prolonged beyond one year from com- mencement of the work, while the principal contractor in either ' MeUrle v. Dunne, 75 111. 339; Culver v. Blwell, 73 id. 536; Barstow v. Mc- Lachlan, 99 id. 641; McGraw v. Bayard, 96 id. 146; adv., 1 Bradw. 134; Welch. V. Sherer, 93 111. 64. ' Marski v. Simmerling, 46 App. 531. SUB-COSTTKACTOES. 80 case would have bo lien, the sub-contractors would. The statute gives them a lien on the property to the extent of the contract price, regardless of when and how it is to be paid, or what the conse- quences to the principal contractor, occasioned by fixing payments or accomplishing completion, so far as express or implied contracts are concerned. So, where the original contractor lost his lien by reason of abandoning the contract, the sub-contractor would still have the right to enforce his, but the extent of the security would be limited, as hereafter shown.' In case of conspiracy between owner and original contractor, thereby making the price as named in the contract less than it actually was, the lien of the sub -contractor would cover the property to the extent of what it should be, and thereby be more extensive than the lien of the original contractor, which could only be enforced for that reduced price.' The liens of each class depend upon independent provisions of the statute. Those provisions, up to section 29, except in section 2, apply solely to original contractors, thereafter to sub-contractors.' While the lien of the latter is dependent upon some sort of a contract having been made by the original contractor, it is independent of that contractor's lien. It depends simply upon the sub-contractor doing his agreed part pursuant to the terms of the original contract and his own con- tract, and fixing and perfecting it according to the special statutory provisions applicable solely to him. The manner and amount of his recovery are controlled by performance or abandonment of the original contract by the original contractor. § 131. Mechanical or other lahor. — Among these preferred and privileged persons, the laborer (mechanical, skilled, or common), under the original contractor, enjoys the highest privilege and is accorded amplest protection. His claim is a lien for twenty days from the date of the last day's work performed by him to an amount equal to ten per' cent of the proportionate value of the contract completed up to the date of that last day's work, provided the notice mentioned in section 30 is served within twenty days from the day when such last day's work was performed by such person serving such notice.* This lien is absolute to the extent of the ten per cent propor- ' Sec. 45, act 1874, as ain,eiided. ' See. 39, act 1874, as amended. ' Maxwell v. Koeritz, 35 App. 300. * Sec. 33, act 1874, as amende4; Metz v. Lowell, 83 111. 565; see form of notice. Appendix, page 303. 13 90 Mechaitic's Lien Law. tional value of what has been done under the contract, no matter "whether the owner has paid the contractor in full or not. Thte owner is allowed by the law to retain for twenty days such ten per cent out of what money is due or to become due to the con- tractor.' If his own business prudence has not prompted him to reserve a per cent of what is due the contractor as work progresses, this section makes it obligatory upon him to do so. If he does not, lie pays the contractor at his owii peril. This ten per cent is not in addition to such per cent as the owner may, in his contract, provide for holding back. If the contract provides for payment, eighty-five per cent as tlie work progresses, fifteen per cent balance when finished, the ten per cent is included in that fifteen per cent. He must pay the original contractor eighty- ■five per cent, and not withhold ten per cent therefrom.' If the contractor abandons the contract, and it costs the owner more than what lie has left out of what he was to pay the con- tractor, still the laborer's lien covers the ten per centum value of what has been done. There is no escape from that liability if the laborer serves his notice properly. The owner's only safety is in his reserving ten per cent of whatever may be due the contractor for twenty days after the last day' s labor of any laborer. The only case wherein the laborer is forced to accept a pro rata payment is where this ten per cent and whatever else the owner may owe the original contractor is insufficient to pay all the laborers. In that event, and only in that event, he must pro rate with his co- laborers, then only, and with them only." In case the amount due from the owner to the original contractor is insufficient to pay all in full, the laborers must first be paid in full, then ~the balance pro rated among the other lienholders in pro- portion to the amount of their respective claims." §132. Owner has ten days to pay sub-contractor. — If the money due to the person giving notice shall not be paid within ten days after service thereof, or within ten days after the money shall become due and payable, and any money shall then be due from such owner to the original contractor, then such person may there- upon file his petition and enforce his lien, in the same manner as original contractors may.' ' Sec. 33, act 1874, as amended; Metz v. Lowell, 83 111. 565; see form of notice, .Appendix, page 303. » Sec. 34, act 1874, as amended. ' Sec. 37, act 1874, as amended. ^ Sub-Contractors. 91 § 133. Suit at law against owner and contractor. — Instead of thus enforcing his lien he may sue the owner and contractor jointly for the amount due him, in any court having jurisdiction of the amount claimed to be due, and a personal judgment may be ren- dered thereon as in other cases." His right, however, to a personal judgment is dependent upon the existence of his lien. And to a common-law action against the owner and original contractor, the owner is entitled to make any defense that would defeat the lien.' If that is defeated the defense to the action is complete. If the contractor's statement give no notice to "the owner of the sub-claimant's debt, and if notice has not been served by him on the owner in proper form and manner or within' the statutory time ; if the suit is not brought within three months after the cause of action accrued ; if for any reason the sub-claimant has no lien, he cannot maintain the action at law. §134. Wrongful payments. — Payments made by owner to original contractor, after such owner is notified of the sub-contractor's claims by the statement of the original contractor, provided for by section 35 of the present act,' are wi' 'iigf ul payments. Payments made by the owner after notice served by the snb-contractor or ma- terialman, as required, are wrongful payments.' Payments made within twenty days after the last day's labor of the laborer, in excess of ninety per cent of the Value of what has been done, as to such laborer are wrongful payments." Any payments made by the owner without demanding the state- ment of the contractor as required in section 35, were held to be ■wrongful payments under the law of 1887. The construction of the present statute, as before shown, is doubtful, and it is now the owner's only safety to demand the statement prior to any of such payments.' If the money is due the sub-contractor or laborer as the work progresses, but not due from the owner to the original contractor until all the work is completed, or six or twelve months thereafter, «uch sub-claimants have three months after such payment is due the original contractor within which to bring their suits ;' and if they ' Sec. 37, act 1874, aa amended. ' Bouton V. McDonough County, 84 111. 384; Quinn v. Allen, 85 id. 39; Ber- iowsky V. Sable, 43 App. 410. ' Sec. 46, act 1874, as amended. * Havighorst v. Liudberg, 67 111. 463; Morehouse v. Moulding, 74 id. 333; Brown V. Lowell, 79 id. 484. ' Sec. 33, act 1874, as amended. • Sees. 39, 35, act 1874, as amended. ' Sec. 47, act 1874, as amended; Meeks v. Sims, 84 111. 432. 92 Mechanic's Lien Law. have properly served notice on the owner, or he has been notified of their claims by the contractor's statement, his payment to the original contractor during that time is a wrongful payment, as either notice binds from the time it is served, or given. Payments made by the owner to the original contractor within forty days after the completion of any sub-contract, or the delivery of any material by the materialman to the contractor, or after pay- ment is due them, might perhaps even yet be held to be wrongful payments, unless made after obtaining the original contractor's state- ment, and on faith of that statement. § 135. Sub-contractor's lien limited to amount due original. — The amount due or to become due the original contractor at the time of the service of the notice, is all the sub-claimants can recover from.' The money in, or to be in, the hands' of the owner, after all deductions are made and due to the contractor, is the fund and only fund out of which the sub-claimants can be paid.' These deductions are rightful payments the owner makes to the contractor, damages for delay in completion, which should be fixed at a certain rate per day, and damages for defective construction in manner or material.* § 136. Abandonment by original contractor. — Should the original contractor, for any cause, fail to complete and abandon his contract, any person entitled to a lien as aforesaid, may file his pe- tition in any court of record, against the owner and contractor, set- ting forth the nature of his claim, the amount due, as near as may be, and the names of the parties employed on such house or other improvement subject to liens ; and notice of such suit shall be served on the persons therein named ; and such as shall appear shall have their claims stdjudicated, and decree shall be entered against the owner and original contraetoi; for so much as the work and ma- terials shall be shown to be reasonably worth, according to the original contract price, first deducting so much as shall have been rightfully paid on said original contract by the owner, and damages, if any, that may. be found to be occasioned the owner by reason of the non-f nlfillment of the original contract ; the balance to be di- vided between such claimants in proportion to their respective in- terests, to be ascertained by the court. The premises may be sold as in other cases under this act." ■ Douglas V. McCord, 13 Bradw. 278; Culver v. Elwell, 73 111. 536. 2 Culver V. Blwell, 73 111. 536; Metz v. Lowell, 83 id. 565; Schultz v. Hay, 6^ id. 157; Biggs v. Clapp, 74 id. 335; Mehrle v. Dunne, 75 id. 239; sec. 33, act 1874, as amended. ' Sec. 45,#ict of 1874, as amended. SUB-CONTRAOTOBS. 93 This section applies solely to the claimants in case of abandon- ment and non-completion. The questions in such cases are, what is the owner liable for ; what have the lienors a right to ? Actions under this section are independent of those under other provisions of the law. The lien claimant can sue at once, after giv- ing notice according to law. It was held that where the owner had fully paid the abandoning contractor before notice by the sub-contractor, the latter could not- recover ; but his remedy, if any, was under section 7 of the act of 1869, this section under the present law. It is only under tliis sec- tion that sub-claimants can and must proceed where the contract is abandoned by the original contractor." The owner is liable in such action, and in such case his liability is for as much as the work and materials are reasonably worth, accord- ing to the original contract price. The amount of damages would necessarily be, not only the loss occasioned by delay, but also in ad- dition thereto what it cost the owner to have the original contract carried out. This aggregate amount should be deducted from the original contract price, the balance applied to the liens. If he is compelled to exhaust the original contract price, taking into con- sideration what he has rightfully paid to the original contractor, he is not required to pay any thing to the sub-claimants.' If it fairly and reasonably cost him as much as, but no more than what was left of the contract price, no recovery could be had or lien sustained against him by a sub-claimant. Under the statute, and by the plainest principles of justice, the owner is entitled to the benefit of the contract with his original contractor. Where the notice had been duly served, and there was no money due the original con- tractor when it was served, it was held, if the owner expended it properly in employing others to complete the work, he was not liable.' § 137. Lien for work done after abandonment prior to lien for work done before. — There is this difference in case of abandon- ment and in case of continuance of the work by the original contractor. "Where the original contractor continues the work, and tlie owner sees that what is remaining of the contract price will he insufficient to pay for its completion, he cannot prefer the sub claimants who furnish material and perform labor or, services subsequent thereto, 1 Mehrle v. Dunne, 75 111. 339. '' Culver V. Elwell, 73 111. 536; Moreliouse v. Moulding, 74 id. 322: Biggs v Clapp, id. 335; Schultz v. Hay, 63 id. 157; Doyle v. Munster, 27 App. 130. 94 Mechanic's Liek Law. to those who have ali-eady existing claims.' But in case of abandon- ment he can prefer such claims coming due for work done there- after. In case of abandonment he has the right to use what remains of the contract price to complete the work, and if he reasonably and justly expends it to so complete it, he will not be-liable to those who performed labor or furnished materials prior to the abandonment." § 138. Fraudulently low price in original contract. — To the rule that the owner shall not be held to pay a larger sum than the original contract price there is one exception. If it shall appear to the court that the owner and contractor, for the purpose of defraud- ing sub-contractors, fraudulently fixed an unreasonably low price on their original contract, then the court will ascertain liow much of a difference exists between a fair price for the labor and materials furnished in the improvement and the sum named in the original contract, and will, in effect, add such difference to the contract price, as to the sub-contractors, and make the property subject to a lien to that amount, but in no such case will the original contractor's time or profits be secured by lien, beyond the sum named in the original contract or agreement.' The above supposed fraud must be clearly established. It is the duty of the sub-contractors and materialmen to learn what the con- tract is before they incur risks in furnishing labor or material. There are but few such who are incapable of forming an approxi- mately correct estimate of the cost of an improvement and thereby judging whether or not the contract is fraudulent. Contracts induced by ignorance of the contractor in estimating, his over- anxiety to get work, and so start himself in business, even a certain rashness and recklessness in competition do not amount to frauds. The owner often finds out that the lowest is not the best bidder. He is prone to accept such bidder. Such party may underbid his competitor, who proposes to do a good job, and such underbidding may be induced by fraudulent intent on his part to slight the work, to the deceived owner's detriment. The owner may be ignorant as to the value of the contemplated work, and in such case would not be held to be in any way a participant in the fraud. He is as apt to be a victim of as a co-worker in the iniquity. The materialman whose negligent furnishing of materials, without looking into the contract and ascertaining whether or not those whom he deals with ' Morehouse v. Moulding. 74 111. 322. » Biggs V. Clapp, 74 III. 335; Mehrle v. Dunne, 75 id. 239. * Sec. 29, act 1874, as amended. Sub- Contracto rs. 95 are original or sub-contractors, has put him in the position of a sub- sub-contractor, and who, as a last resort, attempts to ride over the con- tract by eliarging fraud on tlie part of the owner and those engaged in the work, will find such charge, if he does not fully prove it, recoil upon him and force the court to consider his conduct as unconscionable and dishonest as the iniquity he denounces. Such charge is sometimes made, whereby property is tied up and the record of its title cumbered until the day of trial, when the case is abandoned without even an offer of evidence to sustain it. The statute is short in not providing some penalty for such blackmail litigation, beyond mere costs and self-smirch of character. Fraud is never presumed, it must be proved. When proved, the court lays a heavy hand on the perpetrators, sweeps the fraudulent contract aside, and awards just reparation to the injured. § 139. Fraud does not aid in establishing lien, — In no case can fraud, even if it exists, establish or aid in establishing the lien. It can be taken advantage of only by him whose lien has been fixed by his own performa'nce of statutory requirements to enforce pay- ment of what is his due. Carelessness or oversight on the part of the honest dealer may leave him the helpless victim of chicanery. Where the bill alleged tliat the house was to be completed on December 1, 1890, that plaintiffs delivered material from April 24 to August 11, 1890 (probably should be July 11), served notice on the owner July 24, 1890, and brought suit January 17, 1891,. alleging that the owners fraudulently claimed that S., to whom they furnished the material, was a sub-contractor, whereas he was in fact an original contractor, and that this was done to cheat and defraud theni and persons in like circumstances ; that the owner yet held back $3,800, not paid the original contractor, a demurrer was sustained to the bill, on the ground that the suit was not brought within the statutory time as provided in section 47 of the statute.. The court held that the fund unpaid, even if fraudulently unpaid, and even if S. vvas fraudulently declared to be a sub-contractor so as to place his material creditors in the attitude of sub-sub-contractors, could not be subjected to payment of the just claim of those who had no lien, as they had lost it by their own laches in bringing suit too late, or by failing to aver in their petition facts as to when the building was completed, or payment due the contractor, that would liave showed the suit to have been brought in time.' Eittenhouse v. Sable, 43 App. 558. CHAPTER VI. PERFECTING LIEN OF SUB-CONTEACTOB, Section 140. Notice not to be filed with clerk. 141. Must be served personally. Copy of contract to be attached when. Address of notice. 142. Limitation of forty days. Orders accepted before notice served. 143. Action at law against owner. 144. Garnishment of owner, and rights of sub-contractor. 145. Service on owners non-resident or not found in county. Piling with clerk. ' Publication or posting. 146. Effect of notice. Extent of lien. 147. Owner must pay to sub-contractor first. 148. General settlement — proceeding for. Bill of interpleader. Will not be if nothing due. , Only owner or lienholder can file. 149. When notice not necessary. Excuse of. Not if owner notified by contractor's statement. § 140, Notice not to be filed with clerk. — It has been shown that the lien of the, original contractor is perfected and fixed by filing the claim, as pi;escribed in section 4, with the clerk of the Circuit Court. This is not only unnecessary on the part of the sub-claim- ants, but does not accomplish any thing in their behalf, if done. The filing of claim or notice merely with the clerk of the Circuit Court, except where the owner cannot be served with notice in the county, does not affect their lien or bind the owner at all, even if he has personal knowledge, or notice of such filing. § 141. Must be served personally. — The sub-contractor must serve a written notice on the owner or his agent. This notice must be dated and signed and delivered to the owner or agent in person.' Delivery by mail is not sufficient. Even if the owner receives it hy mail, it does not bind him, and he may dis- regard it with impunity.' y Preserve a copy and note date of delivery thereof.' ' Wetenkamp v. Billigh. 37 App. 585. '~ » Carney v. Tully, 74 111. 375. ' See form, Appendix, page 302. Perfecting Lien of Sub-Contbactok. 97 If there is a contract in writing between the original contractor and sub-contractor, a copy of such sub-contract, if the same can be obtained, shall be served with such notice and attached thereto. If it can be obtained and is not attached, the notice is insufHcient.' Where the sub-claimant in his notice to tiie owner gives an errone- ous name of the principal contractor, as a firm. Smith & Co., when he should have given the name of an individual, John Smith, if the owner be not misled or harrned by the error, it will not vitiate the notice." § 142. Limitation of forty days. — This notice must be served within forty days from the completion of such stib-contract, or within forty days after payment should have been made to the person per- forming such labor or furnishing such material.' This provision of the statute is in the alternative, and the sub-contractor has his option to give the notice within forty days after a payment falls due, or within forty days after completing- his contract. If given on the payment falling due, or within the time limited therefor, it will complete his lien from that time, and the owner cannot avail of any payment made to the principal contractor after such notice, to defeat the lien of the sub-'contractor. But if he delays until forty days after he has completed his contract, he only acquires a lieu on what- ever the owner may then owe the first contractor. He cannot thus reach any sum paid after his payment falls due and before he gives the notice.' He cannot recover any greater sum than was due and owing, or to become due the contractor at the time of his notice.* It has been held that payments made after notice on orders accepted before notice are good, and that such acceptances are good if only verbal,' but this might be different under the present law if such orders were accepted before requiring the contractor's statement. §143. Action at law against owner. — Where the owner has funds due the original contractor, at the time of the notice by the sub-claimant, he is liable to action at law by such claimant, whether the debt be for wages or material.' Such would also be the case after notice of sub-contractor's claims by the contractor's statement. ' Sec. 31, act 1874, as amended. ' Roach V. Chapin, 37 111. 194. 3 Brown v. Lowell, 79 111. 484. (The time when this decision was rendered was twenty days, the present law makes it forty.) * Metz V. Lowell, 83 111. 565. » St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546. ' Culver V. Fleming, 61 111. 498. 13 98 Mechan-ic's Lien- Law. § 144. Garnishineiit of owner and rights of sub-contractor.— Where the owner had been garnished on a judgment against the original contractor before the sub-contractor served his notice, it was held, that such garnishment took precedence of the sub-contractor's claim to the exte.it of the amount garnished, that it was an appro- priation pro tanto of what the owner owed the original contractor, and to that extent defeated the lien of the sub contractor.' Bat this position is not tenable under the present statute. The lien of the sub-contractor attaches to the property to the extent of the contract price from the date, not of his, but the original contract,* and is as much prior to such garnishment lien as the original con- tractor's lien to a judgment against the owner subsequent to the date of his contract. It continues as the work progresses until the statutory limit allowed him in which to give notice, forty days after completion of his work, or payment due, or notice to the owner by the principal contractor's statement. The owner cannot safely pay the original contractor during these periods until after he has demanded and received his statement as to what sub-claimants he was indebted to, and the amounts of such in- debtedness, and, upon receipt of information by such statement or by the sub-contractor's notice, it becomes his duty to pay this amount, not to the original but sub-contractor, thus making it, on condition, ah initio the sub-contractor's money. Nor can he safely make pay- ment to the contractor until after the time had passed for the sub- contractor's notice where no such statement was obtained, because of the possible danger of that sub-contractor's impending lien. By reason of the foregoing the owner cannot answer as to his indebted- ness to the original contractor in response to any garnishment pm- ceedings until these sub-claimants shall have had their day. The sub-contractor's notice is retroactive and relates back to the date of the original contract, and as of that date fixes the priority of his lien on what the owner owes the original contractor as against the claim of any judgment-creditor of the original contractor who may gar- nishee the owner.' N"otice served on the husband of the owner, though he were the agent, has been held not good.' This was prior to the enactment permitting notice to be served on the agent, and illustrates the ne- ' Nesbit V. Diokover, 23 App. 140. ' Sec. 29, act 1874, as amended. ' See Manowsky v. Conroy, 33 App, 141. ■* Legnard r. Armstrong, 18 Bradw. 549. Perfecting Lien of Sub-Conteaotoe. 99 ceesity of strict compliance with the statute, not simply the spirit of the law, bnt the very letter. § 145. Service on owners non-resident or not found in county. — If the owner cannot be found in the county in which the im- provement is made, or shall not reside therein, the person furnishing such labor and materials must file the sub-contractor's notice in the oflSce of the clerk of the Circuit Court.' Only in such case has filing this notice with the clerk any thing to do with the claimant's right. Also, in such case, a copy of the notice must be published in some newspaper printed in the* county, for four successive weeks, after filing the notice with the clerk as aforesaid. If, however, there be no paper published in the county, then the claimant of the lien must post notices in four of the most public places in the vicinity of the improvement.' The claimant can have the notice published in any newspaper he pleases that is published in the county where the improvement is located. § 146. Eflfect of sub-contractor's notice — extent of lien. — This notice gives the sub-contractor, matefialman, mechanic, laborer, or other person a lien on the property the same as to the original contractor, but only to the extent that the owner is indebted to the original contractor at the time of the service of the notice, or may become indebted to him thereafter as such contractor.' It would not be a lien on any thing the owner might owe the contractor outside of the indebtedness on that particular job oi- improvement. § 147. Owner must pay to sub-contractor first. — When the owner. or his agent is notified as aforesaid, it becomes his legal duty to retain from any money due or to become due the original con- tractor, an amount sufficient to pay all demands that are, or will become due such sub-contractor, materialman, workman, mechanic, or other person so notifying him, and to pay over the same to the person entitled thereto, the same as when so notified by the original contractor's statement.' The owner, however, should not act upon the notice without con- sulting the original contractor. He should ascertain that the persons so notifying him are entitled to what they claim before he pays them. He is entitled to hold out of what is due or to become due the ' Sec. 33, act of 1874, as amended. = Sec. 33, act of 1874, as amended; Culver v. Fleming, 61 111. 498: Newhall v Kastens, 70 id. 156: Culver v. Blwell, 73 id. 536' Brown v. Lowell, 79 id. 484. ^ Sec. 34, act 1874, as amended. 100 Mechanic's Libit Law. original contractor, the amount, or aggregate amounts claimed, and the contractor cannot maintain a suit against him therefor. § 148. General settlement, proceeding for. — In tlie event of a dispute between the original contractor and those under him so notifying the owner of their claims, the owner may file a bill of in- terpleader, making them all parties and set up the facts, and the court will settle their respective rights and liabilities and protect him in the disbursement of the money he has so reserved.' If the owner does not owe the original contractor any thmg, a bill of interpleader will not lie. He must then simply defend the suits brought against him, and defeat the lien.' The owner may file such bill, whether sued or not, where two or more claim the fund owing by him.' All persons who shall be duly notified of such proceedings, and who shall fail to prove their claims, whether the same be in judg- ment against the owner or not, siiall forever lose the benefit of and be precluded from their liens and all claims against the owner.' And upon the filing of such bill or petition, the court may,^ on the motion of any person interested, stay any further proceedings upon any judgment against the owner on account of such lien.' On final decree a perpetual injunction to stay such proceedings would be in order. Only the owner or lienholder can invoke the aid this section afiEords. Where the husband made a contract to build on his wife' s land, and conflicting claims of sub-claimants amounting to more than what remained due to the original contractor were made, and he filed a bill to distribute the amount due between the contractor and other claimants ; held, that only the owner or some person having such lien could file a bill under this section, and that these persons not having made the contract with the owner, had no liens, and, therefore, could not file the bill. That the husband not being the owner, and the contracts to build being personal with iiim, he could not file the bill. ' § 149. When notice not necessary. — Where the sworn state- ment of the original contractor, provided for in section 35, shall ' Sec. 39, act 1874, as amended. 2 Hellman v. Sclineidei', 75 111. 483. 3 Newhall t. Kastens, 70 111. 156. '' Sec. 40, act 1874, as amended. ' Sec. 41, act 1874, as amended. * McQraw v. Storke, 44 App. 311. PbKFECTING LlBK OF SUB-CONTKACIOR. 101 serve to give the owner true notice of the amount dne and to whom due. the notice required under section 30 is not necessary.' If it fails to give that true notice to the owner it does not excuse the failure of the sub-claimant to give the statutory notice required of him, but that notice is then necessary to bind the owner. Under the amendment of June 16, 1887, the decisions heretofore cited went far toward making notice of a sub-claimant on the owner unnecessary, and the statutory requirements for such notice useless. A like, or very different construction may be put upon the present statute. However that may be, there are no idle or nugatory pro- visions in this statute. Courts do not stretch its construction to favor the interests of any class, however worthy their claims, or deserving themselves. This law looks upon owner and employee, dealer and operator with no partial, sympathetic view for one, but impartial view for all. Its conferred rights, imposed duties, are equally obligatory upon all within its purview. If the owner had not demanded nor received the statement, and the sub-contractor had not served his notice, the omission of statutory duty on the part of the sub-claimant would certainly close his mouth to complain of a like omission on the part of the owner." Such being the law, statute rights may be secured by affirmative acts on the part of the respective parties in interest. No one, there- fore, should rely on the acts or omissions of another, bnt should himself take such steps as will in any event secure his rights. Each should do that which unquestionably secures his lien. Failure in any part may be fatal to the claimant's interests. ' Sec. 30, act 1874, as amended. 2 Butler & McCrackeu v. Gain, 138 111. 23; O'Brien v. Graham, 38 App. 546. CHAPTER Til. ARBITRATION. ASSIGNMENT. Sectioi^ 150. Arbitration does not release lien. Suit begun revokes arbitration. Statements during arbitration competent evidence. 151. Assignability not decided. Suit " to use, etc." not an assignment. Assignee pendente Ute may enforce. Assignee of contract may enforce. Holder of lien claim as collateral must prosecute. 153. General assignment by owner does not defeat lien. Accepting dividend in assignment does not defeat lien. 153. General assignment by original contractor. Rights of sub-contractor in case of. § 150. Arbitration does not release lien. — Parties concerned in claims arising under this act may submit their rights to arbitra- tion, as in other aflEairs, nor does such action constitute a waiver or release of the lien. Bringing suit to enforce the lien after submission to arbitration revokes such submission.' Statements made by the owner in arbitration proceedings are competent evidence to prove agency.' § 151. Assignability not decided.— As to whether or not a lien is assignable has not been decided, but it is held that the assignee of such claim can prosecute an action to enforce the Jien for same in the name of his assignor; that it should be so prosecuted, and that there is no error in such case in entering a decree in the name of the assignor for the use of the assignee ; ' that the assignee pendente lite can make himself a party to the proceedings by supplemental bill, but not by petition ; that his position will be the same as his assignor, and that he can utilize the pleadings of his assignor as his own.* That bringing suit for the use and benefit of another is not tantamount to an -assignment so as to present the question as to whether a lien is assignable or not.* That a receiver being appointed under a creditor's bill against a mechanic entitled to a lien and an 1 Paulsen v. Manske, 136 111. 73. » Phoenix Mut. Life Ins. Co. v. Batchen, 6 Bradw. 631; C. & V. R. R. v. Fack- ney, 78 111. 116. » Lunt V. Stephens, 75 111. 507. * Barstow v. McLachlan, 99 111. 641. Arbitration — Assignment. 103 order on such mechanic to make assignment of property to such receiver, where none is made and the receiver makes no claim to the lien debt, is no waiver or release of the lien, or bar to its prose- cution by the lien creditor." Where a builder assigns his contract to another, and the owner has knowledge of it, the other becomes the eqAiitable assignee, entitled to the proceeds, and can enforce the lien for his use and benefit, in the name of the assignor. In such case the original contractor cannot dismiss the bill and defeat the equitable assignee of his rights set up in the cross-bill.' Where one holds a claim secured by a lien claim assigned as col- lateral security therefor, he not only can, but it is his duty to en- force the lien securing his debt. His obligations are the same as are imposed upon the holder of any other collateral security.' He cannot sell such collateral and buy it in himselfr § 152. General assignment by owner does not defeat lien. — A general assignment of a mechanic for the benefit of his creditors does not preclude his prosecution of his lien.' Where the owner makes such assignment, proof of such Hen claims against his estate constitutes no waiver of the lien ; whatever is collected thereby simply goes as a credit on the lien.' Such as- signment does not divest the Circuit Court of its jurisdiction, or give the County Court jurisdiction to enforce the lien.* The assignee is only entitled to the equity of redemption of the property after it is sold under the mechanic's lien decree." An assignment of a particular piece of property by an owner to pay a particular debt is not such general assignment.' § 153. General assignment by original contractor. — The Ap- pellate Court has recently held that a general assignment for the benefit of creditors by an original contractor divests the lien of the siib-contractor, and bars his securing and enforcing it as the statute prescribes.' The author submits that such decision is a mistake. The distinguished jurist who voiced the opinion did so under pro- test, and condemned the precedents that the court felt forced to fol- low in giving the act a strict construction. The opinion, is based on the wording of section 33 of the act, that the sub-contractor has a lien ' Barstow v. McLachlan, 99 111. 641. » Major V. Collins, 11 Bradw. 658. ' Friedman v. Roderick, 20 Bradw. 632. I * Chicago Artesian Well Co. v. Corey, 60 111. 73. ' Paddock v. Stout, 121 111. 571; Stout v. Sower, 22 App. 65. « Paddock v. Stout, 121 111. 171. ' Haines v. Chandler, 26 App. 400. 8 Ryerson v. Smith, Dec, 1893. 104 Mechanic's Lien Law. only on what is due the contractor at the tinae of service of his notice on the owner, that such contractor, liaving made a general assign- ment, was dead at law, nothing was due him, but all owing to him w^s due to his assignee. By high authority it is held that the right of a sub-contractor to payment out of moneys due the contractor is not cut off by an as- signment for the benefit of creditors made by the contractor.' That the assignee has a right to contest the validity of the lien upon every ground available to the owner of the premises.' But the sub-con- tractor is entitled to proceed the same as if the assignment had not been made." That recording the claim for lien by an original contractor does not newly incumber the property, but simply fixes and secures upon it a lien already existing.' The giving of notice by the sub-contractor to the owner is of the same character, is the statutory method provided him to fix and se- cure his already existing lien. By this act the lien of the sub-contractor attaches to the employ- ing owner's property at the time of the making of the original con- tract,' and continues an impending lien, until the original contractor's statement shows it has been paid, or, if no such statement is given, until the forty days have elapsed within which he is entitled to notify the owner thereof. The assignee is undoubtedly entitled to what is owing to his as- signor. What is owing to that assignor is the question. If it be the owner's duty to the sub- contractors, before paying the original contractor, to demand of him a statement of his indebted- ness to them, to pay them what iTe learns thereby is due them, and to pay him only the balance, the same duty obliges the owner to pursue the same course with the original contractor's assignee, and pay him in the same manner. He could not rightfully answer as to his indebtedness to the assignor until he had demanded such state- naent of the representative of such assignor." If it be the duty of such assignor to furnish his assignee with information of his' prop- erty, his assets and liabilities, that duty enforces a full statement, not only of what the owner owes him on tlie contract, but of what he owes to his sub-contractors under the same contract, so that the ' PMllipps on Mechanic's Liens, sec. 62h. ' PMllipps on Mechanic's Liens, sec. 395. ' Jones on Liens, (3d ed.), sec. 1550. * Sec. 39, act 1874, as amended. Abbitratiok — Assignment. 105 assignee should be enabled to make the same statement to the owner that the assignor could, and can rightfully demand only what his assignor could — the balance, after leaving with the owner sufficient to pay them. The riglits of original and sub-contractors — their liens — depend upon independent provisions of the statute.' It plainly says the lien provided for in sections 1 and 29 shall extend to the same prop- erty, recognizing each as a distinct and different lien, but covering the same security.' If no statement of the original contractor is demanded by the owner, the sub-contractor's right to give his notice exists. That statement simply excuses his not giving it. The statute makes it a personal right of the sub-contractor to give this notice to the owner. It must be given, not to the original contractor, but the owner, and regardless of the physical or legal mortality of the contractor. The sub-contractor has tlie right to give it, no matter what the original contractor may do, or what his fate. It binds what is coming to the original contractor to the extent of the sub-contractor's claim, re- gardless of the death of that contractor, or assignment tantamount thereto. If by such assignment the original contractor becomes dead in law, and what is due him vests in his assignee, such conse- quence catmot divest this primary right of the sub-contractor, or vest in the assignee any more than was coming to his assignor. If the original contractor's statement, or the sub-contractor's notice, made in proper form and due time, bars the owner paying any thing to the original contractor beyond the surplus, after paying the claims he is so notified of, either equally bars payment of more to him who stands in his stead, his representative, whether heir, executor, ad- ministrator or assignee. The assignee acquires only the " equity of redemption " in the assignor's property covered by a mortgage, whether that mortgage be the ordinary or statutory. The notice, according to law, perfects his inchoate Hen that impends thereunder from the very beginning, not of his particular work, but of the contract for the entire work. Notice on the owner by the sub- contractor, within the forty days, must logically and legally have the same effect in fixing and securing his lien as it would have had in case the assignment, with which he had nothing to do, had not been made. The service of that notice within the time provided by the statute makes his claim an original debt of the owner to him; makes ' Maxwell v. Koerltz, 35 App. 300. ' Sec. 2, act 1874, as amended. 14 106 Mechanic's Lien Law. the owner indebted to the original contractor only for what is left after payment of the bills he is so notified are unpaid,' and, perforce of the statute, that amount all that the assignee can claim. Death, or assignment, can no more-prevent perfection of a statu- tory than enforcement of a recorded lien. To hold otherwise is not only contrary to the letter, and spirit of the law, but is to open wide a door to defraud every sub-contractor by collusion of the owner and original contractor in the latter's general assignment for the benefit of his creditors, before the sub-contractor had served his notice on the owner, yet within the time the law expressly gave him to serve it. ' Sec. 34, act 1874, as amended. CHAPTER Till. INCUMBRANCES. Section 154. Incambrances and liens as apportioned. 155. Section 17. 156. Rule of apportionment. 157. Case of. 158. Value of land, what meant. 159. Value of improvements, what meant. 160. Cases cited. 161. Prior mortgage scaled. Incumbrancer probably cannot prevent this. 162. Fraudulent incumbrances. 163. Lienholders may contest each other's claims. 164. Lien attaches when contract is made. Incumbrances after this are subject to liens. 165. When date of mortgage is important. 166. Lien prior to mortgage void lor informality. 167. Mortgage on equitable estate. , 168. Purchaser takes subject to attached liens. Purchaser pendente lite. Purchaser reserving part of money. Sale under deed of trust. Purchaser not liable personally. 169. Bond or contract for deed by vendor. Vendor prior to lien. Bond securing purchase-money and loan, prior not absolute as to loan. Conveyance after Improvement — change of rights. Deed and bond to reconvey, is mortgage only. 170. First lienholder accepting subsequent mortgage releases first lien. 171. Extension of time. Beyond statutory period. 173. Improvements paid for by owner or mortgagee. 173. Lienholders pro fate. 174. Sale subject to prior mortgage. Owner cannot complain. Lienholder may. 175. Claims not yet due. Must rebate interest. Mortgage not yet due. Decree should not order owner to pay it. In caee of sale it must be paid as due. 176. May sell first and take testimony as to value afterward. Siould be value of land at date of contract. 108 Mechabtic's Lien Law. § 154. Incumbrances and liens as apportioned. — Incumbran- ces on the property covered by mechanics' liens are recognized, ad- justed and enforced by this law in its own peculiar way. All other liens by trust deed, mortgage, judgment or otherwise, stand in the order of +,heir record, and are preferred in accordance with their priority as to time. The general rule that whatever is added to an in, cumbered estate inures to the benefit of and is covered by the incum- brance does not apply when such liens contest with inechanics' liens for enforcement by sale of the property affected. Even the vendor's lien for purchase-money, preserved by timely and fitly-executed document properly recorded, carries with it no special sanctity to demand satisfaction prior to these liens on what is added to the value of the property pursuant to the contracts under which they claim existence. Where property is sold under decree in these pro- ceedings, the proceeds of the sale represent and stand in the place of the land and the building, and all parties who have liens thereon by trust deed, mortgage, judgment, under this statute, or otherwise, have the same proportionate share in the proceeds that they had in the property before it was sold. The sale must wipe out and extin. gnish all these burdens upon and deliver the title to the property free and clear therefrom to the purchaser. These claimants mi^st look to the fund produced by the sale, after payment of costs, for satisfaction of their claims as this statute directs.' §155. Section 17. — The statute provides that no incumbrance Upon land, created before or after the making of a contract under the provisions thereof, shall operate upon the building erected or materials furnished, until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied ; and upon questions arising between previous incumbrances and creditors, the previous incumbrance shall be preferred to the extent of the value of the land at the time of making the contract, and the court shall ascertain, by jury or otherwise, as the case may require, what pro- portion of the proceeds of any sale shall be paid to the several par- ties in interest.' § 156. Rule of apportionment. — In interpreting this it is held that neither prior nor subsequent incumbrances can operate upon the buildings erected or materials furnished, to the prejudice of the persons performing the labor and furnishing the materials. A prior incumbrancer is preferred to the extent of the value of the land at ' Bradley v. Simpson, 93 III. 93; Topping v. Brown, 63 id. 349. ^ Sec. 17, act 1874, as amended; Williams v. Chapman, 17 111. 423. Incumbrances. 109 the time of malsing the contract for the erection of the building, and lie also has a subsequent lien on the building subject to the first lien of the mechanic. The mechanic in the same manner has a prior lien on the improvements he puts on the land to the extent of the ad- ditional value those improvements give the premises, and a subse- qnent lien on the land."' ' Each must look to satisfaction of his debt, first out of the fund on which he has a first lien ; if that proves insufficient, to vphat remains of the other fund after satisfying the prior lien thereon. § 157. Case of apportionment. — In a proceeding to enforce a mechanic's lien, to which a prioi' mortgagee was a party defendant, where the court found the proportion of the value of the premises at the time of the decree, which was added thereto by reason of the im- provements, out of. which the meclianic's lien arose, and then directed that, out of the proceeds of the sale of the premises, the proportion so ascertained, which would arise from the land without the improve- ments, should be first applied on the mortgage, and the proportion aris- ing from the enhanced value on account of the improvements should be paid on the mechanic's lien ; and any surplus of the latter fund to be applied to satisfy any balance due on the mortgage, it was held, as between the mortgagee and mechanics, the decree was correct.' § 158. Yalue of land, what meant. — The value of the land at the time of the contract does not mean the naked ground only, but the land with whatever improvements were upon it at that time. If at the time buildings were upon it, and such were repaired, and for these I'epairs a lien is enforced, such lien takes priority over the mortgage only to the extent of the additional value given to the property by the improvements. If a house and lot worth $15,000 are mortgaged, and subsequent thereto the mortgagor improve the same so as to make the premises worth $18,000, the mechanics and materialmen, by whose labor and property these improvements were made, would have a lien to the extent of three^eighteenths of the proceeds' of the sale." §159. Yalue of improvements, what meant. — The value of the improvements is not what they cost, but the increased market ' Sec. 17, act 1874, as amended; Williams v. Chapman, 17 111. 423. " Raymond v. Ewing, 36 111. 339; Smith v. Moore, id. 393; Nortlt Presbyterian Church V. Jevne, 33 id. 314; Croskey v. N.W. Mfg. Co., 48 id. 481; Diugledine v. Hershman, 53 id. 380: Howett v. Selby, 54 id. 151; Tracy v. Rogers, 69 id. 663'; Bradley v. Simpson, 93 id. 93; Condict v. Flower, 106 id, 105; Ogle v. Murray 3 Bradw. 343; Miller v. Ticknor, 7 id. 393; Laugford v. Mackey, 13 id. 333. ' ' Howett V. Selby, 54 111. 151; Dingledine v. Hershman, 53 id. 380 ' Croskey v. N. W. Mfg. Co., 48 111. 481. 110 Mechanic's Lieut Law. value added to the property without reference to the cost of ma- terials and labor actually furnished." For instance, if the land is worth $5,000, the improvements, $15,000, total value of land and improvements, $20,000, the prior mortgage has a lieu of one-fourth, the mechanic's of three-fourths of this total valuation of the property. If sold under a decree to enforce the' mechanic's lien, for $12,000, the prior mortgage would get one-fourth, or $3,000, the mechanic's, the balance. So that if the proceeds of the sale are not sufficiient to pay both, the mortgagee must take such share as the value of the property before the improvements bears to the total value after it. § 160. Cases of apportionment. — Where the land before the improvement was valued at $3,200, enhanced by the improvement $6,290, making a total value after the improvement of $9,492, and the net proceeds of the sale were $3,338.91, though there was due on the prior mortgage, interest and all, $5,657, the prior mortgage was entitled to 3200-9rt92ds of $3,338.91, or $1,125.63.' Where the land before improvement was valued at $12,000, after, the premises at $30,000, the prior mortgages, without interest, were $9,046, with interest over $10,000, and the gross proceeds of the sale, $8,250, leaving after the cost% $7,889.65 for distribution, 'the prior mortgages were entitled to 12-30ths, the mechanic's to 18-30th8 of that net sum.' In this case, the oversight of counsel in suffering a wrong decree in the mechanic's favor cost them all share of this, but the rule is distinctly recognized in the case. A proper distribu- tion would have given prior mortgages only $3,159.86. Where the property was already improved and worth $18,000, after repairs and additions, $25,000, it was held, the mechanics were entitled to 7-25ths, the prior mortgagee to 18-25ths of the proceeds of the sale." § 161. Incumlbrancer probably cannot prevent scaling.— Thus it is that under this law a prior mortgage for purchase-money or other indebtedness can be scaled down to the loss of the owner thereof. It is questionable if this can be prevented by the party who takes a trust deed or mortgage having a proviso therein that no lien shall be created by the owner in improving, building or rebuilding on the ^ same, to the prejudice of the holder of such trust deed or mortgage, inasmuch as the statute makes express' provision limiting the 1 Gaty V. Casey, 15 111. 190; Croskey v. N. W. Mfg. Co., 48 id. 481; Clark v. Moore, 64 id. 373. « Bradley v. Simpson, 93 111. 93. ' Diugledine v: Hershman, 53 III. 280. 4 Hovett V. Selby, 54 III. 151. Incumbrances. Ill extent of such incumbrances. Where such proviso was held to be operative and to bar the creation of mechanic's liens the property was not in trust to secure a debt, but for the use and benefit of another.' But it is possible that a court of equity would enjoin the owner of such incumbered property undertaking an improvement thereon, from making such improvement, in case the incumbrancer should show that he was not able to pay for the same, and that such im- provement would impair his security thereon. § 162. Fraudulent incumbrances. — Any incumbrance, whether by mortgage, judgment or otherwise, charged and shown to be fraudulent in respect to creditors, may be set aside by the court, and the premises made subject to the claimant or petitioner, freed and discharged from fraudulent incumbrance.^ § 163. Lienliolders may contest eacli others' claims. — Lien- holders are privileged to contest the claims of each other;' and, where not made parties, may contest such even after a decree has been rendered.* § 164. Lien attaches when contract is made. — As to whether a mortgage be prior or not to a mechanic's lien depends upon when that lien attaches, and when the mortgage is put to record. The; same as to date'of judgment. The earlier cases held that the me- chanic's lieu did not attach until the work was performed or mate- . rials furnished, the contract completed.' These decisions have never been expressly, but by implication have been overruled in the later cases, which hold that the lien at- taches when the contract is made, and any incumbrance recorded' subsequent to that date is subsequent to the lien, both on the land and the improvements, no 'matter when made.' Where the contract was made June 30, 1883, work was completed October 15, 1883, trust deed made July 2, 1883, recorded July Y, 1883, the mechanic's lien was held prior to the trust deed on land as well as improvements.' ' Franklin Savings Bank v. Taylor, 131 111. 376. 'Sec. 19, act 1874, as amended; Bennitt v. Star Mining Co., 119 111. 9; 18 App. 17. ' Sec. 18, act 1874, as amended. ^ Dunphy v. Riddle, 86 111. 32. ' McLagan v. Brown, 11 III. 519; Gaty v. , Casey, 15 id. 190; Williams v. Chap- man, 17 id. 423; Hunter v. Blanchard, 18 id. 818. « Clark V. Moore, 64 111. 273; Thielman v. Carr, 75 id. 385; Hickox v. Green- wood, 94 id. 266; Paddock v. Stout, 121 id. 571; Franklin Savings Bank v. Taylor,. 181 id. 376; Stout v. Sower, 32 App. 65; Freeman v. Arnold, 39 id. 316. ' Stout V. Sower, 32 App. 65; Paddock v. Stout, 131 111. 571. 112 Mechanic's LiEisr Law. "Where the mortgage was made July 17, 1872, recorded Septem- ber 7, 1872, the owner made contracts, one with Carr, for hardware, on August 17, 1872; one with Fitzsimmons, for'himber, on Sep- tember 6, 1873, the lions for both of said contracts were held prior on land and improvements to the trust deed." § 165. When date of mortgage is important. — The date of the mortgage cuts no figure in the matter of priority, where it is shown that the mortgage was made before the contract, and it is not shown whether it was recorded before or after the contract was made. Where there are equal and competing equities, the oldest prevails. A mortgage dated April 14, and recorded April 24, was held prior to a contract made on April 24," it not having been shown that the contract was made prior to the record of mortgage. §166. Lieu prior to mortgage void for informality. — If a mortgage, for informality in its execution, be void, yet such as a court of equity could establish and give validity to, the mechanic's lien, if it attaches prior to such establishment, though subsequent to its record, is prior thereto." A married woman living separate from her husband and transact- ing business in her own name, executed a mortgage on a lot that was her separate property. The mortgage was executed October 27, 1866, and recorded November 13, 1866, her husband not joining in its execution. On July 17, 1869, this Jot was sold under a mechanic's lien decree for labor and material furnished in improving that lot' after the recording of the mortgage. On suit to foreclose that mort- gage it was held that the mortgage made by her alone was void, that its execution might be a satisfactory ground upon which the court could establish a lien in equity against her separate property, but no such lien would exist until it was established , by a decree of the court. That when so established it could have no retroactive opera- tion. Such a lien, when it takes effect, must act upon the property in the condition in which the decree finds it. The mechanic's lien is of a difEerent character. It derives its force from the statute, is eo instanti, a lien upon the property, which continues fi-om that mo- ment until the debt is satisfied, unless it is waived, released, or suf- fered to expire for want of proceedings by the statute made neces- sary to keep it alive. That the mechanic's lien thus became prior 1 Thielman v. Carr, 75 111. 385. ' Elgin Lumber Co. v. Laugman, 23 App. 250. ' Lewis V. Graves, 84 111. 206. Incumbeanoes., 113 to the mortgage, and the sale under the decree enforcing the lien wiped out the mortgage altogether.* § 167. Mortgage on equitable estate. — If an equitable owner makes a trust deed or mortgage at the I'equest of the legal owner, such trust deed or mortgage is good. The fact that a prior deed of trust was upon an equitable estate will not postpone it to the me- chanic's Hen.* § 168. Purchasers. — A sale during the progress of a building, upon which a lien has attached, cannot afiEect the rights of a me- cbanic' A party purchasing premises on which buildings are in process of erection is bound to make inquiry as to the rights of parties furnishing material or performing work thereon, and is charged with constructive, if not actual, notice of the lien.' 'A pur- chase of property after; the lien is fixed gives him no rights as against the lien." A purchaser of a building from the owner, pending a proceeding to, enforce a mechanic's lien created for its erection, will take the title subject to the lien which may be established in that proceeding; and if such purchaser sell the house to another, and induce him to remove it to another lot, he will hold the proceeds of the sale as a trust fund liable to discharge the lien.' Where the person who contracted the debt which created the lien «ells to another, who reserves from the purchase-money an amount sufficient to pay the debt, the latter cannot complain of a decree making the debt a lien on his interest in the land." A sale under a deed of trust, prior to the lien, conveys no title to the improvements to the purchaser ; or if any title is conveyed, it is subject to the prior lien of the mechanics to have their debt first paid out of the proceeds derived from the sale of such improve- ments.' The purchaser who accepts a conveyance of property subject to liens is not liable, personally, therefor.' § 169. Executory contracts. — Where a vendor, by bond or con- tract, agrees to convey property on payment of the purchase-money, he difEers from the vendor who conveys and takes a mortgage or ' Lewis V. Graves, 84 111. 206. = Lunt V. Stephens. 7.5 111. 507. ' Clark V. Moore, 64 111. 273; Chicago Artesian Well Co. v. Corey, 60 id. 73; Work V. Hall, 79 id. 196; Bennitt v. Star Mining Co., 119 id. 9; 18 App. 17. * Chicago Artesian Well Co. v. Corey, 60 111. 73; Austin v. Wohler, 5 Bradw. 300. ' EUett V. Tyler, 41 111. 449. « Kidder v. Aholtz, 86 111. 478. ■> Gaty V. Casey, 15 111. 190. 8 Condict V. Flower, 106 111. 105; Work v. Hall, 79 id. 196. 15 114 Mechakic's Lien Law. trust deed to secure the same ; lie must be paid in full, and is not held to be a prior incumbrancer. The purchaser of the notes held by such vendor enjoys the same protection accorded the vendor.' Where such vendor, at the time of making the bond or contract to convey, makes a loan to his vendee, and the contract for convey- ance obligates the payment of both purchase-money and loan, as an aggregate sum, as a condition precedent to conveyance, the pur- chase-money lien is absolute, but that of the loan prior as to the land, second as to the improvement. Where such vendor, after the purchaser has contracted for the erection of a building upon the premises, loans the purchaser money and gives a new bond or contract for a deed to be made upon the payment of the , original price, and the sum thus loaned, the vendor, as to the mechanic who erects the building, will in equity occupy the po- sition of a-subsequent incumbrancer as to the sum loaned, and he postponed to the rights of the mechanic, but not as to the purchase- , money due under the original contract of sale." The fact that the new contract is made after the contract to build does not alter his position as to the purchase-money, but does alter it as to the loan." If, however, instead of executing a new contract to convey on pay- ment of the purchase-money, he execute a deed conveying the prop- erty, and take back a trust deed or mortgage to secure the payment of the purchase-money, he changes his position, and, while his lien is prioi^ to that of the mechanic on the land, it is subsequent as to the improvements, is still a prior incumbrance, but only as any other prior incumbrance, first on the land, second on the improvements.' Where he simply executes a new contract to convey on payment of the purchase-money, he does not part with his title, and' that title cannot be affected. He must be paid in full ; his lien is absolute. In conveying he does part with his title, and though the trust deed be for the same purchase-money, the conveyance has stripped it of the absolute right to payment. Where the vendor repurchases the property, and as part con- sideration agrees to pay the notes executed by the vendee for im- provements, the land and entire property, not merely the improve- ments, become subject to the lien.* Where A. borrows of B., and instead of a mortgage gives B. a deed of the property, taking his bond for rteonveyance on payment 1 Wood v.'Eawlings, 76 111. 206. ' Hickos V. Greenwood, 94 111. 266. = Wing V. Carr, 86 111. 347. * Adams v. Russell, 85 111. 284. Incumbrances. 115 of the loan, it is different from an actual vendor's bond ; such is only a mortgage and prior, as any other mortgage, on the land, second on the improvements.' § lYO. First lienholdev accepting subsequent mortgage re- leases first lien. — Contracts for materials have priority over a subsequent incumbrance by trust' deed placed upon the premises, and where the holder of a trust deed for purchase- money, made prior to the contracts for materials, which would be the first lien, releases such incumbrance in consideration of the assignment to him of a subsequent incumbrance, or third lien, placed upon the premises, he, by such act, necessarily yields precedence to the lien for materials, which in the order of priority stood ahead of the last trust deed. The first liei;^ had no power to impart to the third any of its precedence so as to give the latter priority to the extent of the incumbrance thus retired behind it. In this case, A., the vendor, held the property subject to an incumbrance of $16,000 to B. for purchase-money; A. sold the property to C, took back an incum- brance from C. for $33,000 purchase-money, which incumbrance was by agreement made second to one of $45,000 to D. for money borrowed to improve the jiroperty. Prior to the record of the latter trust deed to D., mechanics' liens attached for the improvement of the property so that in order of priority the lien stood : First, to B. for $16,000 ; second, the mechanic's ; tlrird, to C. for $45,000, and thereafter to A. for $33,000 purchase-money. The court held the latter a third incumbrance, though the mechanics' liens attached prior to its record, and by contract it was made second to that of $45,000. A. assigned to B. a portion of the trust deeds securing his $33,000, in consideration of B. releasing his first lien under his trust deed for $16,000, and the court, as stated, held that B.'s lien became a third incumbrance in consequence, that a first lien has no power to impart to a third any of its precedence so as to give the latter priority over a second lien. If the first is released, the second becomes first in priority." § 171. Extending time beyond statutory period. — A party who has furnished materials cannot contract with his debtor for an extension of time for payment beyond the statutory period, so as to extend his lien upon the premises to the prejudice of a mortgagee, or other incumbrancer, mechanic or purchaser. If he give time to his debtor beyond the statutory period for filing claim, serving no- ' Langford v. Mackey, 13 Bradw. 223. ' Phcenix Mutual Life Ins. Co. v. Batchen, 6 Bradw. 631. 116 Mechakic's LiEJiT Law. tiee or exacting payment according to the terms of the original con- tract as between him and such others, whether their liens be prior or subsequent, his lien is lost.' § 172. Improvements paid for by owner and mortgagee. — The enhanced value given to property by such improvements, as the owner pays for, inures to the benefit of the mortgagee, not the mechanic, and all improvements paid for by the money of the mort- gagee, prior or subsequent to the mechanic's lien, inure to his benefit. The subsequent, mortgage may have been given to secure the very money paid on the improvement.^ § 173. Lienholders pro rate. — Lienholders must be paid pro rata. If one be overpaid, receive more than \iSs,pro rata share, the other lien creditors have the right to sue for the excess.^ § 174. Sale subject to prior mortgage. — While the owner cannot complain if a sale be ordered subject to the lien of a prior trust deed,' the mechanic or materialman can, because the same is thereby made an absolute preference to his claim, whereas, as to him, it is only a lien to the extent of the value of the land, whether due or not due. § 175. Claims not yet due. — Where the property is incumbered by a prior mortgage, the decree may direct a sale of the premises in fee, notwithstanding the mortgage may not then be due.' And when an entire sale has been made of the whole property, and some of the debts secured are not then due, in ascertaining the proper amounts to be paid upon such debts, there must be a rebate of inter- est from the date of the judgment to the maturity of the respective debts.' This applies, however, only to mechanic's lien claims not due, not to mortgage debts.' It has been held that where the prior mortgage is not due, the decree cannot order the owner to pay it before due.' Courts cannot make new contracts for parties, can only enforce those made. J?ut the law gives such mortgage a preference only as to the value of the land,° and where it becomes necessary to sell the property in the enforcement of a mechanic's lien, such mortgage must be paid its 1 Brown v. Moore, 36 111. 432; Kelly v. Kelloffg, 79 id 477 2 Clark V. Moore, 64 111. 373. ^Buchter v. Dew, 39 111. 40; Mehrle v. Dunne, 75 id. 339; Offle v. Murray, 3 Bradw. 343. ^ •' « Portones v. Badenoch, 133 111. 377. 'Croskey v. N. W. Manuf. Co., 48 111. 481. « Sec. 16, act 1874, as amended. ' North Presbyterian Church v. Jevne, 33 111. 314. « Strawn v. O'Hara, 86 111. 53 ' Sec. 17, act 1874, as amended. INCUMBRANCES. 117 proportionate shar^ of the proceeds of the sale, the same as if it were due. § 176. May sell first and take testimony as to value after- ward. — There is some confusion in the cases as to what date these valuations should be made. It is held that it is not error for the court to direct a sale of the property, and then direct the master to take evidence, and report to the court of the comparative value of the land and the improvements at the time of the sale ; such value being determined in reference to the day of the sale, that evidence after the sale would be more satisfactory.' But the statute plainly says, the previous incumbrance shall be preferred to the extent of the value of the land at the time of making the contract. This may be a very difEerent value from that at the time of making the decree or the sale thereunder, especially in towns and cities where rapid growth and change in location of public, manufacturing, or trans- portation enterprises rapidly change values. The value of property, improved or unimproved, at the date of the contract, is not difficult of ascertainment. The decretal sale may be far from determining it. That sale may decide the value of the improved premises when it is made, must decide the fund for distribution. But other and better proof can be had as to the value of the property when the contract was made. That is a fact in existence before even suit is brought, as determinable before as after the sale, and the proof should be as to the value of the land at the date of the contract. ' Croskey v. N. W. Manuf. Co., 48 111. 481. CHAPTER IX. LIMITATIONS. Section 177. General statute does not apply. Limitations in Mechanic's Lien Act. 178. None as to when work is to be began. 179. Limitation for filing claim for lien. None as to owner. Four months as to others. Euns from time of payment. 180. Limitation as to sub-contractor's notice. 181. Laborer's claim, service of notice. To hold to ten per cent must be within twenty days. To hold lien must be within forty days. Is a preferred claim. 183. Limitation controlled by original contract. Payment on completion. Limitation runs from completion. Defects remedied. Working test. Changes provided for by original contract. When giving mortgage is condition precedent. 183. Entire contract, lien runs from completion. 184. Those proving claims in probate court are judgment creditors. 185. Limitation runs from maturity of debt. Vendor wrongfully delaying delivery. Tender, how made. 186. Extension of time by sub-contractor may release owner. 187. Customs as to date of payment. 188. Limitation as to suit by ofiginal contractor. When can and must be brought. ~ Euns from time of filing claims. Euns in favor of all — two years. 189. Limitation as to suit by sub-contractor. Euns from time money is due him. Or from time money is due original contractor. 190. New parties by amendment. 191. Thirty-day demand by owner. 192. Importance of limitations. § 1Y7. General statute does not apply. — The general statute of limitations does not apply to mechanic's liens. The Lien Act is a law unto itself, the limitations provided therein only applicable to cases thereunder.' The statute fixes definite periods within which the work must be performed, or material delivered after the commencement, of the 1 Kinney v. Hudnut, 3 Scam. 473; Clark v. Manning, 4 Bradw. 649; 90 111. 380, Limitations. 119 work or delivery of the materials,' and within which, after comple- tion of work or delivery of materials, payment therefor must be made, dependent upon whether the contract be express or implied ; ' within which a claim for lien must be filed by original contractors and parties dealing directly with the owner, and within which suit must be brought thereafter;* within which notice to the owner must be given by the sub-claimant,' and within which he must bring suit;' and within which, on demand of the owner on any parties claiming liens, they must bring suit/ If such claimants or liolders of liens do not comply with these regulations, their liens will be lost. To file the claim, serve the notice, or begin the suit before the regular statutory time is as fatal as to do so after that time." § 178. None as to when work is to be begun. — There is no limitation fixed within what time the work shall commence after the contract is made.' There exists no statutory reason why a contract could not be made for work to begin one, two or three years after its date, and from the date of commencing work the limitation as to completion and payment would run. In large cities, where buildings, once considered magnificent structures, have become inadequate to the demand and out of proportion to the value of the ground, consequent upon increased growth; where it is expedient and profitable to erect more commodious and taller edifices, where leases of part or of all of such would not expire for a year or more, and possession could not be had to tear down the old, and erect the new building until they did expire ; where contracts for such new and large buildings required extensive preparation, con- tracts are not only probable, but in such conditions are made to commence work a year or more after the making thereof. From the date of that contract the lien attaches, and becomes prior to sub- sequent incumbrances placed on the property by the owner, or judg- ments recovered against him ; ' from the date of commencing work under it the limitations as to when it must be completed and paid for.' ' Sec. 3, act 1874, as amended. '' Sec. 38, act 1874, as amended. 2 Sec. 31, act 1874, as amended. * Sec. 37, act 1874, as amended; Huntington v. Barton, 64 111. 502. ' Sec. 53, act 1874, as amended. « Kinney v. Hudnut, 3 Scam. 473. ' Sec. 17, act 1874, as amended; Clark v. Moore, 64 111. 278; Theilman v. Carr, 75 id. 385; Hickox v. Greenwood, 94 id. 366; Paddock v. Stout, 131 id. 571; Frank- lin Savings Bank v. Taylor, 131 id. 376; Stout v. Sower, 23 App. 65; Freeman v. Arnold, 39 id. 316. * Sec. 3, act 1874, as amended. 120 Mechan-ic's Lien Law. § 179. limitation for filing claim for lien. — As between origi- nal contractor and owner there is no time within which the original contractor must file his claim for a lien.' Hence his delay in do- ing so does not impair his lien as between them. As between contractor and other creditors, incumbrancers, or pur- chasers, whether their claim or rights be prior or subsequent to the mechanic's lien, the claim for that lien must be filed, as required, within four months after the last payment falls due according to the terms of the contract as originally made." Any amendment of the claim must be filed within the four months named.' This provision is for the benefit of these parties only, and they, only, can plead the delay of four months in filing the claim as a bar to the lien as against them.* If the contract be completed, either for work on the building or delivery of materials, on January 1, 1894, the last payment is to be on January 1, 1895, the claim is good if filed on April 30, 1895.. So that for sixteen months after completion the rule caveat emptor must be heeded. During all that time, though there be no record evidence of the lien, the party who loans money on security of the improved property, credits the owner of it on faith of his responsi- bility through ownership of it, or buys it, does so at his peril. The law imposes no obligation on the original contractor to reveal his secret, unrecorded claim, or break his silence in regard thereto dur- ing that time. A loan might be made, trust deed or mortgage therefor duly re- corded, or purchase be consummated, full payment made, warranty deed recorded, possession taken, at any time during 1894, or even up to April 29, 1 895. If the claim for lien were filed April 30, 1895, it would take precedence of the mortgage, trust, or warranty deed. Well may our courts enforce a strict construction of the statute whose provisions make easily possible a fraud ou, perversion of jus- tice against the innocent, who must make their rights a matter of public record to secure them. Important is it, too, that owners im- proving should preserve their original contracts showing when pay- ments were to be made, especially the final payment ; and not only ' Sec. 4, act 1874, as amended; Turney v. Saunders, 4 Scam. .537; Garrett v. Stevenson, 3 Gilm, 261; Van Pelt v. Dunford, 58 111. 145; Jennings v. Hlnkle, 81 id. 183. ' Sec. 28, act 1874, as amended; Huntington v. Barton, 64 111. 502; Lunt v. Ste- phens, 75 id. 507. 2 McDonald v. Rosengarten, 134 111. 136; 35 App. 71. ; * Van Pelt v. Dunford, 58 111. 145. LiMITATIOKS. 121 take receipts in full, but waiver or release of liens from all who furnish materials, or render labor on, or services for such improve- ments, stating that such parties did all the work named, or furnished all the material of the class specified therefor ; that in event of in- cumbering or selling such property during this period, they may present as clear evidences as possible that no such hidden liens in- cumber it. The special contractor who did the masonry, cai-pentry, plumbing, painting, heating, etc., could give the statement that he did all the work ; the materialman's statement could be only so far as he knew ; for others, unknown to him, might have furnished the same class of goods for the improvements. Some other evidence, as of the architect, superintendent, foreman, or mechanic, who saw or directed the use of such material, or put it into the building, should be secured at the time that all of such material used came from such materialman. Objections made by attorneys, in examining titles for loans, or purchasers, that such proofs of payment are wanting, are not cap- tious. They should be provided for. Titles cannot be passed upon mere faith, nor too great care exercised in keeping them clean and perfect. § 180. Limitations as to sub-contractor's notice. — The sub- contractor can serve his notice on the owner at any time, but must serve it within forty days after his claim is due, or contract com- pleted, or his lien will be lost," unless excused by the owner's demand and receipt of the principal^ contractor's statement, as required, and such statement giving the owner true notice of his claim. §181. Limitations as to laborer's notice. — The laborer must serve his notice within twenty days after his last day's work in order to claim a lien on ten per cent of the value of the improvement made ;' if served after twenty and within forty days, he has a lien as any other sub-claimant,' except that it is preferred over material- men and others not laborers;' if after forty days, no lien at all. § 182. As affected by terms of original contract, — The limi- tation as to the original contractor runs from the time of final pay- ment as fixed in the original contract, not from the time thereafter fixed or extended by the parties. The law regards the terms of the original contract, not what the parties may subsequently do in the ' Sec. 31, act 1874, as amended. ' Sec. 30, act 1874, as amended. ' Sec. 33, act 1874, as amended. ^ Sec. 34, act 1874, as amended. 16 132 Mechanic's Lien Law. execution of it.' The question is not whether the.parties do or do not agree, after the execution of the contract, to an extension of the time for payment. The question is as to the terms of the contract. The lien depends upon the provision which the contract makes as to the time of payment, and the limitation runs from that time.' Thus, where the original contract stipulated for payniient an, or six months after completion, and the parties could extend , that time further without releasing the lien as to them ; if such be done, and no claim filed within four months from the time first fixed, the lien is released as to all others. Where payment is to be made on completion, whether of work or delivery of materials, the time of completion is the date from which hmitations will run, whether completion be accomplished on the day fixed, or before or after that day.= So, where, after delivery of pos- session to and acceptance by the owner, defects are discovered and are remedied by the sub-contractor, the time of completion as to him will date from the time such defects are remedied, and limita- tion runs from that time as to service of notice on the owner.' If a working test — as where machinery is to be finished and started to satisfactory working order — is the date of payment, regard- less of the date fixed in the contract, payment is not due, limitation does not begin to run until that satisfactory test is made ; that test marks the tim6 of completion and start of limitation.* Where such completion was to be on August 1, but was not accomplished until September 1 5, the latter date was held the time from which the limitation ran.^ Where the original contract is for a specific sum, but with an agreement for alterations and change in plans, and an agreement by the owner to pay what is equitable therefor, any work growing out of such alterations is not extra work, but part of the original, entire contract, the lien of the contractor attaches thereto the same as for work done under the specifications, and from the completion of the 1 Cook V. Heald, 31 111. 435; Cook v. Vreeland, id. 431; Beasley v. Webster, 64 ^id. 458; Huntington v. Barton, id. 502; Lunt v. Stephens, 75 id. 507; Growl v. Nagle, 86 id. 437; Belanger v. Hersey, 90 id. 70; McCarthy v. Neu, 93 id. 455; Paddock v. Stout, 131 id. 571; Chisholm v. ■Williams. 138 id. 115; Simon v. Block, 16 Bradw. 450; Chisholm v. Randolph, 31 App. 313; Stout v. Sower, 33 id. 65. 2 Paddock v. Stout, 131 111. 571; Stout v. Sower, 33 App. 65. 3 St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546. * Paddock v. Stout, 131 111. 571; Stout v. Sower, 33 App. 65. s Chisholm v. Randolph, 31 App. 313; Chisholm v. Williams 138 111. 115. LiMITATIOlfS. 123 contract, including such alterations, is the date from which limita- tions will run.' Where payment is agreed to be extended in case a mortgage to secure same is given, the giving of the mortgage is a condition precedent, and if not given, the debt at once becomes due, and the limitation then commences.'' But where it is simply agreed that the time shall be extended and the debtor shall execute notes and give secu- rity therefor, the execution of the notes is not a condition prece- dent, and their non-execution will not make the debt due, or change the terms. In such case, where the time for which the notes were to be given is beyond a year from completion, there will be no lien, and the limitation of the statute as to claim or notice does not con- cern it.' § 183. Entire contract, lien runs from completion. — A.b to when the limitation will begin to run as to the original and sub- claimants, depends upon the character of the contract under which the labor was performed or materials furnished. If it is an entire contract, as to do all of the work on the whole building, or all of a certain class of work, or to furnish all of a certain class of materials, as brick, lumber, or hardware, the party who does the work or furnishes the materials has no claim in law or fact until the entire contract has been performed. He cannot split up his claim and file separate claims, or give separate notices. He must wait until the last act is done, the contract fully completed. But when, under a contract to do all the labor and furnish all the materials of a certain kind for the erection of such buildings and appurtenances as the owner might require for certain purposes, the contractor did all the work be was required to do, or nearly so, on the buildings required to be erected, and settled for the same, show- ing a certain amount due him; and, after the Chicago fire of 1871, and a temporary suspension of the owner, growing out of the fire, furnished labor and materials in the following year on other build- ings connected with the first, but which could have been omitted, and then filed his petition to enforce his lien for the several sums due him, including that due in the first year, it was held, in favor of intervening creditors, who were sought to be postponed on the whole of the contractor's claims, that the last work could not be held to be a continuation of the first, but rather as a new and inde- ' Brown v. Lowell, 79 111. 484. ' Gardner v. Hall, 29 111. 277. ' Beasley v. Webster, 64 111. 458. 124 Mechanic's Libnt Law. pendent contract. That no number of buildings being specified, and it not being known just what buildings the company would require, the contractor had no right to insist upon the erection of any cer- tain number of buildings, but only such as the company elected to have erected, and that the limitation run as to the work done the pre- vious year from the time it was done in favor of intervening creditors.' § 184. Those proving claims iu probate court are judgment- creditors. — A materialman cannot enforce his lien against the es- tate of the owner who di^s, and with whom he contracted directly, after the statutory limit has run, so as to cut ofE other creditors who have proved their claims, where the personal estate is insufficient for their payment. Creditors who have proved their claims against a decedent's estate are regarded as judgment-creditors. In such case he stands as any other general creditor.'' § 185. Limitation rnns from maturity of debt. — Where the bill of material is purchased on six months' time, the time of the six months runs from date of delivery of the entire bill — the last item, and the limitation from six months thereafter. If the vendee wrong- fully delays delivery the seller may make a tender of the materials, and the time will run from the date of such tender. "Where such materials are bulky, as lumber and shingles, setting them apart and notice to the purchaser is a sufficient tender." § 18^. Extension of time by sub-contractor may release owner. — The apprehension of offending a customer, the desire to give courteous accommodation to a patron, the gentlemanly aversion to what may appear harsh and exacting in business, often induces materialmen to delay or omit to follow the strictx requirements of the statute, but courts cannot make this law indulge a corresponding leniency. They must construe it without regard to well-intentioned civility or generous motives. Such indulgence wrecks, their rights to a lien ; the attention of a conscientious customer called to this fact ppevent his asking it. Extension of time between contractor and materialman, without the knowledge of the owner, does not prevent the limitation running from the day when it was first due.' Where payment, according to the contract, is due at a certain date, extension of time by the sub-claimant will release the owner if notice be not served with regard to the original date of payment.* ' Lunt V. Stephens, 75 111. 507. = Reitz V. Coyer, 83 111. 38. 2 Langford v. Mackey, 13 Bradw. 333. * Brown v. Moore, 36 111. 433; Kelly v. Kellogg, 79 id. 477; Paddock v. Stout, 131 id. 571; Chisholm v. Williams, 138 id. 115. LiMITATIOKS. 135 Where no time of payment for materials is fixed by the contract, or agreed upon, or no estabhshed custom of trade to the contrary, the price therefor becomes due and payable as soon as the delivery is completed, and the law will imply that payment should then be made. In such case the time must be counted from the day the last item of material is delivered for filing claim by an original contractor, or for serving notice, or bringing suit by a sub-claimant.' §187. Customs as to date of payment. — But where there is a uniform custom to demand payment at the close of each month, or on the first of the month for all goods delivered the previous month, and such custom is known to the other, there arises by implication an understanding between the parties that credit is given until the close of each month, and limitation will run from the first of the month as to the previous month's bills, and notice must be served on the owner within forty days from the first day of the month as to such bills.'' If the creditor indulge the contractor until the first of the next month — as for instance, on the December bill, due January 1, to February, and incorporate same with the bill of January and serve notice after February 9, bat within forty days of February 1, the bar of limitations will run as to the December bill, in the owner's favor.' It is not in the power of the original contractor and materialman to extend the time of payment, and thus extend the statutory liability of the owner, without his knowledge or consent. In this case all bills were payable on the first of the month for goods delivered the previous month. The statement for materials deliv- ered in December was dnly sent on January 1. The contractor and materialman agreed to postpone payment thereof until Feb- ruary 1, by which time all wanted would be delivered and would be paid for. They were not paid for, the materialman served notice on the owner within forty days after February 1, namely, on Feb- ruary 17, but not within forty days after January 1, and it was held on account thereof the materialman had no lien against the owner for the December bill.^ § 188. Limitation as to suit by original contractor. — The original contractor cannot bring suit to foreclose his lien until his ' Kelly V. Kellogg, 79 111. 477; Phcenix Mut. Life Ins. Co. v. Batcben, 6 Bradw. 631. ' Notes 1, 4, supra; 4 ante, Claycomb v. Cecil, 37 111. 497. 'Kelly V. Kellogg, 79 111. 477. 136 Mechanic's Lien Law. claim for a lien is filed, as provided,' nor before the day of payment stated in the contract, or thereafter agreed upon. The debt must be due when the suit is brought." If notes are taken, suit cannot be maintained until notes are due,' but separate liens can be enforced on the separate notes as they fall due. Giving notes for a pre- existing debt extends the time and suspends the remedy until respective maturity of such notes." Nor can he enforce it at all, unless he shall commence his suit within two years after filing of such statement.* Once filed, the suit must be brought within two years, or the lien is discharged, the owner as well as all others relieved from its burden. §189. limitation as to suit by sub-contractor. — The sub- claimant, in case the money is due him from the original contractor at the time his notice is served, must delay ten days before bringing his action. In case it is not then due,- ten days after it becomes due. In case the money is not due the original contractor at either of these times, but later, then he must delay action until the same is due the original contractor.' The owner has the right to freedom from suit until these periods have passed, and if harassed by suits earlier, the court will dismiss the same at the claimant's cost. But he must bring his suit, regardless of the time his notice is served, within three months after his cause of action accrues, pro- vided the money is then due from the owner to the original contrac- tor, if not, within three months after it becomes due the original contractor. Failure to bring suit within that time is a bar to recovery.' If any delay be occasioned by reason of the payment not being due the original contractor, the time of such delay shall not be counted. A suit by a sub-contractor is in time, if filed within three months after the money becomes due the original contractor from the owner, although it is more than three months after it is due from the original contractor to such sub-contractor. Where notice was served September 14, 1874, the money was not due the original con- 'Sec. 4, act 1874, as amended; McDonald v. Roaengarten, 134 111. 136- 35 App 71; Boals v. Intrup, 40 id. 63; Shinu v. Matheny, 48 id. 135. * Kinney v. Hudnut, 3 Scam. 473. 8 Cox V. Reiser, 15 Bradw. 483. ■* Sec. 88, act 1874, as amended. = Sec. 37, act 1874, aa amended; Huntington v. Barton, 64 111. 503; Rittenhouse V. Sable, 43 App. 558. Limitations. 137 tractor from the owner until a settlement was had between them, which was had in April, 1875, and suit was brought June 12, 1875, it was held brought in time — within three months after it was due from the owner to the original contractor." § 190. New parties by amendment.— Where new parties are brought in by amendment, the suit is regarded as brought against such parties at the time such amendment is made, not at the time of filing the original petition." The statute formerly provided that no mechanic should be allowed to enforce his lien " as against or to . the prejudice of any other creditor, or of any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor or material shall have become due and payable ; " and where a suit was brought against the contracting party to enforce a mechanic's lien within six months after the last payment became duo, but an incumbrancer and a purchaser under the incumbrance were not made parties within such time, but were brought into the case by amendment after the expiration of the statutory period, it was held no lien could be enforced as against such new parties to affect their rights. The remedy given is purely statutory, and unless enforced in the manner and within the time prescribed in the statute, it can- not prevail against other creditors, and if one not made a party at the time of tiling the petition shall afterward be made defendant, as to such defendant the suit will be regarded as commenced at the time he was made a party, and not before. It is not sufficient to make only the trustee a party ; the owner of the indebtedness him- self, as his interest alone is to be affected by the decree, is an indis- pensable party. The time of a creditor being made a party, either in the original proceeding, or any amendment, must be regarded as^ the time of the commencement of a suit as to him ; and if he is not a party his rights wiU not be affected, although the suit was insti- tuted in time as to others." Under the present act, as suit must be brought within two years after filing the claim, unless such persons are made parties by the petition or amendment within that two years, the Ken is discliarged as to them. The same consequence befalls the sub-contractor who fails to make them parties within the three months that he must bring suit. 1 Meeks v. Sims. 84 111. 432. 2 Danphy v. Riddle, 86 111. 32; Growl v. Nafele, id. 437; Clark v. Manning, 90 id. 380; 95 id. 580; 4 Bradw. 649; McGraw v. Bayard, 96 III. 146; adv., 1 Bradw. 134; Bennit v. Star Mining Co., 119 III. 9; 18 Bradw. 17; Watson v. Gardner, 119 111. 312; 18 App. 886. ,128 Mechanic's Libit Law. § 191. Suit to be commenced withiu thirty days on demand. — Upon the written demand of the owner or his agent, or any person interested in the real estate, served on the person or liis agent claim, ing the lien, requiring suit to be comiuenccd to enforce the lien, such suit shall be commenced within thirty days thereafter or the lien shall be forfeited.' ^ § 192. Importance of limitations. — Limitation runs from the day the claimant can enforce payment, and once run, is a perpetual bar, and under this law is a bar as much in favor of subsequent as prior creditors.' In view of the statutory requirements with regard to filing the claim by an original claimant with the circuit clerk ; the service of notice on the owner and bringing suit by the sub-claimant, the time when the work is completed, when the debt became due, when the m_aterial8 are delivered, whether the materials are to be paid for when all are delivered, or each month's deliveries on the first of the succeeding month, are matters of vital interest to those concerned. IS'ot only the very existence, but perfecting and keeping the lien alive depends upon them. The limitation of the time for filing the claim with the circuit ' clerk is not for the benefit of the owner, but for his creditors ; for purchasers of the property ; for those who may loan money on it, whether their loans be prior or subsequent to the making of the contract, or completion of the improvement.' As the sub-claimant deals, not with the owner, but original con- tractor, the limitations with regard to him are for the benefit of both owner and other creditors. The limitation for bringing suit after the claim is filed is for the benefit of all — owner and creditors, ' Sec. 53, act 1874, as amended; see form of demand. Appendix, page 203. ' Kinney v. Hudnut, 3 Scam. 473; Brown v. Moore, 36 111. 432; Eietz v. Coyer, S3 id. 38; Watson v. Gardner, 119 id. 313. 3 Vain Pelt v. Dunf ord, 58 111, 145. CHAPTER X. REDEMPTION. SATISFYING LIEN PAID. CIRCUIT COURT CLERK'S DUTIES. Section 193. Redemption. 194. Neglect to satisfy lien paid. Penalty. 195. Clerk's fees; abstract. Manner of keeping books for original and sub-contractor. §193. Redemption. — Upon all sales in mechanic's lien cases, the right of redemption exists in favor of the same persons, and may be made in the same manner as is or may be provided for re- demption of real estate from sales under judgments and executions at common law.' A judgment-creditor can only redeem after, not within twelve months from the date of sale." § 194. Neglect to satisfy lien paid ; penalty. — Whenever a lien has been claimed by filing the same with the clerk of the Cir- cuit Court, and is afterward paid, the person filing same shall acknowledge satisfaction thereof in the proper book in such office in writing, and on neglect to do so for ten days after the claim has been paid, he shall forfeit to the owner the sum of $25.' While this release is to be made by the claimant in person, when the payment is made to and release executed by his attorney, the claimant will not be liable for not releasing, when the acts of his attorney are unknown to him.* This clause of the act applies only to an original claimant ; there is no penalty for a sub-claimant not releasing.* § 195. Circuit clerk's fee; abstract. — The clerk of the Cir- cuit Court where such a lien shall be filed, shall indorse on every such claim for a lien filed, the date of filing, and make abstract thereof in a book kept for that purpose and properly indexed, con- taining the name of the person filing the lien, the amount of the lien, the date of filing, the name of the person against whom the lien is filed, and a description of the property charged with the ' Sec. 34, act 1874, as amended. ' Sec. 54, act 1874, as amended. « Armsby v. People, 20 111. 155. ■• Lavery v. Brooke, 37 App. 51. 32 130 Mechanic's Libit Law. Ken, and for which the person filing shall pay one dollar to the clerk.' In all cases where the owner cannot be found in the county in which said improvement is . made, or shall not reside therein, the person furnishing labor or materials shall file said notice in the oflSce of the clerk of the Circuit Court, who shall enter in a book to be kept for that purpose, alphabetically, the names of the owners, and opposite thereto the names of the persons claiming liens, for which the clerk shall receive a fee of fifty cents.' The abstract of the clerk 'does not take the place of the claim. The only purpose of that is to furnish a convenient and ample ref- erence to the claim, and the error of the clerk, if any, will not in- validate it.' ' Sec. 53, act 1874, as amended. This applies to the claims of original cou- ttactoTS only, not to sub-contractors' claims. ' Sec. 32, act 1874, as amended. This applies to the claims of sub-contractors, only, not to original contractors' claims. s McDonald v. Eoaengarten, 134 111. 136; 35 App. 71. CHAPTER XI. WAIVER AND RELEASE. Section 196. Taking note prima facie does not Suing at law does not release lien. 197. Eelease by estoppel. 198. Acceptance of draft or order. 199. Taking other security releases lien. Taking security on same property will not. 200. Part payment in real .estate no release as to rest. 201. Accepting dividend in general assignment does not release. 202. Appointing receiver and assignment to him ordered but not made, no release. 203. Limitations release lien. 204. Release for particular purpose does not release as to others. Purpose may be shown. § 196. Taking note prima facie does not. — The lien may be waived or released by express agreement of the parties, or by the act of the party entitled to it (see forms, Appendix, page 204). It is waived if the owner's note be taken as payment. Prima facie, the taking of a note is not payment, and does not release the lien ; ' nor will it be a release even if assigned and suit be brought thereon, and judgment obtained by such assignee. Before the lien can be enforced, however, the note or judgment thereon must be canceled by the party seeking to enforce the lien." Suing at law does not release the lien. § 197. Release by estoppel. — Where mechanics made a settle- ment with an owner, and accepted notes which they assigned to third parties, and also a warranty deed of certain real estate in excess of the lien, and for the excess gave in return their notes to the owner, during all of which time the mechanics knew the owner was negotiating for a loan on the building and made no objection, it was held the mechanics were estopped by their conduct from insisting that the lien of the loaner was subordinate to their lien.' But where a sub-contractor was present at a settlement between the owner and contractor, as to the sum due for the erection of a ' Van Court v. Bushnell, 21 111. 634; Brady v. Anderson, 84 id. Ill; Crowl v. Nagle, 86 id. 437; Meeks v. Sims, 84 id. 432; Paddock v. Stout, 131 id. 571; Cox V. CoUes. 17 Bradw. 503. * Clement v. Newton, 78 111. 427; Bayard v. Mcflraw, 1 Bradw. 134; McGraw v. Bayard. 96 111. 146; Kankakee Coal Co. v. Crane Bros. Mfg. Co., 128 id. 627. ' McGraw v. Bayard, 96 111. 146; adv., 1 Bradw. 134. 132- Mechanic's Lien Law. house, and for extra work, at whicli time the owner accepted an or- der of the contractor for the balance due in favor of a third person, but the former did not say or do any thing that could have led the owner to believe he was paid or had released him, it was held that he was not estopped from enforcing his lien against the owner, from the mere fact of his bfeing present at the settlement.' § 198. Acceptance of draft or order. — The acceptance by the owner of a building of an order drawn on him by tlie contractor in favor of a sub-contractor, unless received by such sub-contractor as absolute payment, is not a discharge of his lien on the building." § 199. Taking other security releases lien. — The taking of other security, either on property or that of individuals not parties to the transaction, will have the effect to discharge the premises from the lien.' The guaranty of a note by a third party waives the lien.' So if the note of a firm be taken in satisfaction of a claim for work and materials furnished to one of the partners, though the settlement was made in the usual mode of doing business between the parties, a mechanic's lien cannot afterward be sustained for the same against a iona fide purchaser ; ' but if the firm had ordered the materials placed on the premises, and they were used in the improvement of the same, and the firm afterward gave their note for the amount, it would not discharge the lien.' The receiving of an assignment of an insurance policy, without evidence that the lien claimant received it with the intention of its being in full satisfaction of or security for his claim, will not operate as a release or waiver of his lien, nor will taking a more eflicient se- curity on the same property release it.' §200. Part payment in real estate no release as to rest. — deceiving a conveyance of real estate as part payment of a claim for erecting a building thereon, is not a waiver of the lien, for the residue, any more than the acceptance of money as part payment would be.' § 201. Accepting dividend in general assignment does not release. — Proving the claim against an owner who had made a ' HavighoTst v. Lindberg, 67 111. 463. 8 Meeks v. Sims, 84 111. 422. 3 Brady v. Anderson, 34 111. Ill; Kinzey v. Thomas, 28 id. 502; Gardner v. Hall, 39 id. 277. * Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 111. 207. « Benneson v. Thayer, 23 111. 317. 6 Croskey v. Corey, 48 111. 442. 1 Clark V. Moore, 64 111. 273. 8 Bayard v. McGraw, 1 Bradw. 134; adv., 96 111. 146. Waivek and Eelease. 133 general assignment, and accepting a dividend from his estate thereon is not a release or waiver of the lien. Such dividend will simply go as a credit on the lien." § 202. Appointing receiver and assignment to him ordered, but not made, no release. — The mere appointment of a receiver under a creditor's bill against one entitled to a lien, with an order to make an assignment to him, where none is shown to have been made, and the receiver has made no claim to the debt, will not operate to release the lien.^ § 203. Limitations release lien. — Failure, on the part of the original contractor, to file his claim within four months after final payment is due waives' and releases the lien as to prior or subsequent incumbrancers and purchasers ; to bring suit within two years after filing such claim as to owners as well as to these ;' on the part of the sub-claimant to bring suit within three months aCter his cause of action accrues, or if nothing is due the original contractor at that time, within three months after it becomes due him ;' failure to bring suit on the part of any claimant, within thirty days after written denMnd by the owner or his agent, discharges the lien.' § 204. Release for particular purpose does not release as to others. — Where a release is executed to a mortgagee by the eon- tractor to enable the owner to draw money on a loan, it is a release only for the benefit of the mortgagee, for no other party, and for that sole purpose.' So where the release was executed by a sub- contractor to enable the original contractor to draw a particular installment, as the payment due when the plastering is done br floors laid, it was held that the sub-contractor could not complain of the owner paying such installment, whether the work were done or not, that it was a release so far as that installment was concerned.' If the release does not state the purpose or terms of its execution, proof thereof can be made and thereby such purpose established and the intended eflfect and no more will be enforced by the court. Where the release names no one and no consideration is given, the court will look to extrinsic facts to determine both the consideration and in whose favor the release was executed." 1 Paddock v. Stout, 121 111. 871; Stout v. Sower, 3S App. 65. ^Barstow v. McLacWan, 99 111. 641. ' Sec. 38, act 1874, as amended. ''Sec. 47, act 1874, as amended; Huntington v. Barton, 64 III. 503; Meeks v. Sims, 84 id. 433. ' Sec. 52, act 1874, as amended. « Paulsen v. Manske, 136 111. 72; see Dunphy v. Riddle, 86 id. 33. ' Biggs V. Clapp, 74 III. 335. CHAPTER XII. PLEADING AND PRACTICE. Section 305. Nature of action. An assignment in rem. Parties and privies bound. Who are proper parties. Title talien by purchaser. Jurisdiction — what courts have, 306. Bill or petition. When to be sworn to. 307. Petition of original contractor. Kequisites. 308. Original contractor has two forms of action. 309. Sub-contractor has five forms of action. 310. Petition of sub-contractor. Requisites in general. 311. Where he sues for general settlement 312. When original contractor abandons. 313. General practice. Must plead cause within statute. Dates must be alleged. Material allegations discussed. 314. If note taken it must be surrendered before decree. ^ If reduced to judgment it must be canceled. 315. Petition must set out nature of contract. Copy of contract attached as exhibit will help defective pleading. Contract alleged must be proved. Variance — cases of. 316. Must show completion within time limited by statute. Particular date not necessary. Must show amount due. 217. Must show architect's certificate where contract requires. Or excuse non-production. 318. Must allege performance. Particular cages. 319. Estoppel, if relied on, fafcts set out must show. Agency, if relied on, must be set up. 330. Interest, if desired, must be shown. 331. Must give description. Petition may cure description in contract. Admission in answer will prove ownership. Correct description in petition will not cure mistake in claim - cases of. 333. Suit must be brought by parties entitled to lien. And herein of parties in interest. 333. Partnership. Dissolution and formation of. Pleading and Practice. 135 Section 324. All parties in interest may be made parties. Service on non-residents. Practice as in chancery. Unknown owners. 225. Active trust, cestui que trust not necessary parties. Passive trust, cestui que trust a necessary party. 236. Heirs. Executors. Administrators necessary parties. 227. Defunct corporations not necessary parties. 228. Unpaid claimants necessary parties. Incumbrancers necessary parties. Mortgagees necessary parties. Judgment creditors necessary parties. Purchasers necessary parties. Liens not yet due, claimants necessary parties. 229. Those not made parties not cut off. 230. Improper parties. 231. Those acquiring interest pendente lite proper, but not neoessaiy parties. 232. Amendpients. As in chancery. Continuance, when granted for. 233. When a new cause of action. When contract is substantially the same, limitation will not bar. 234. Service of summons, personal. 235. Service by publication. 236. Appearance by solicitor. 237. Answer. When evidence. Set off, when responsive. Payment to third party, when responsive. 238. Damages cannot be recovered. Damages may be a defense. Cross-bill may be attached. Cross-bill may pray to have cloud removed. 239. Oross-bills not necessary in mechanic's lien proceeding. Incumbrancer may make answer cross-bill. Claimant may contest other claims. 240. Assignee of incumbrance must aver he held same at time the suit was begun. 241. Incumbrancer cannot by answer set up claim for materials fur- nished. 242. Limitations must be pleaded. 243. Defense, how set up. 244. Defendant may buy outstanding title. 245. Averments in case of abandonment. 246. Averments as to non-ownership. 247. Plea in abatement not good. Consolidation of causes. 248. Beplication must be general. 136 Mechanic's Liek Law. Section 348. Explanation of new matter in, answer must be by amendment to bill. 349. Demurrer as in other cliancery causes. Proof may aid defective pleading, if not demurred to. Demurrer for parties must show specific ground of. Special cases of demurrer. 350. Suits on chancery docket. Trial by jury. Verdict advisory only. Several claims may be submitted to different juries. 351. Consolidation of cases. May be made if in same or different courts. 353. Trial should be prompt. One claim should not delay others. Sale may be delayed. 253. Decree. Must decree lien. If no lien no j udgment against owner. Contents of decree in general. Ascertain rights of all parties to suit. Decree should not direct sale until amounts due each determined. Need not find interest of parties in default. 354. Apportionment. Distribution of proceeds. 355. Value of both land and improvements must be found. 356. Judgment for deficiency only. 357. Rights of sub-sub-claimant in fund. 358. Only out of what due original paid sub-contractor. No special execution in action at law. 359. Various tracts in same suit. 360. Must not sell improvements without land. Must not sell to pay part of debts. If both legal and equitable owners party, sale of land sells both. titles. May sell interest of all whom lien affects. If not necessary to pay debt, less should be sold. 361. Must show it against right property. 363. Decree for sub-contractor must be against both original contractor and owner. 363. Must show materials were bought for property subject to decree. 364. Defaults. May be talien as in other cases. Interest of one in default may be sold. Rule to plead not necessary in service by publication. Rule to answer not necessary when demurrer overruled. Admits only what is well pleaded. 365. Decree pro confesso is discretionary with court. Decree pro confesso may be rendered if answer insufficient. Decree cannot be taken against wife in default. Decree when suit is for lien on husband's property. Motion and affidavit for bond does not prevent default. Officer making sale. ^ Pleading akd Practice. 137 Section 266. Sale must be in accordance with decree. 267. Sale to party to record set aside on reversal of decree. Sale to party not a party to record not set aside. 268. When court may set decree aside. 269. When bound by erroneous decree. 270. Costs. As between lieu claimants abide event of suit. As between creditors and incumbrancers subject to the order of court. 271. Bills of review, writs of error. 273. Appeals. Record need not show evidence to support decree. Party complaining must preserve it. Objection as to section under which suit is brought, must be made in trial court. 373. Original contractor may appeal from lieu decree. 274. Defective pleadings aided by verdict. 275. Want of proper parties will reverse decree. 276. Variance must be objected to in trial court. 277. Powers of upper court. General Chaeactee of Suit. §205. Nature, of action. — The institution of an action to enforce a mechanic's lien is practically enforcing a general assign- ment in rem, that is, it operates to subject the property affected to the payment of all claims that are liens upon it, whether on the part of record creditors, as incumbrancers and holders of judgments, or lien claimants. The rights of these, of purchasers, of all concerned in that property, to the extent of the owner's interest therein, must be finally and fully settled in that action. Of the same nature are the proceedings for general settlement by the owner or lienholder where the amount coming to the contractor is insufficient to ])ay all claims. Hence the absolute necessity of making all such persons parties. Any omitted party remains unbound by the decree, his rights as unaffected by it as if it had never been rendered, and is at liberty to contest that decree, the claim upon which it was rendered, the lien itself, the sale made in pursuance of it, just as if it had never been rendered, and the action was begun de novo against all. The original contractor need not make sub-claimants parties. His claim covers theirs ; so far as he is concerned, they are improper and unnecessary parties. He must make all incumbrancers, prior or sub- sequent, and purchasers parties. He must make not only trustees, but cestui que trusts parties. If the trustee is made a party, but not the cestui que trust, the latter is 18 138 Mechanic's Lien Law. not bound or afEected by the decree. But if the cestui que i/rust July is made a party and suffers a decree to be rendered on a trial an the merits of the ease, without objecting to the omission of his trustee as a party, his estate and interest, and that of ,all who claim under him, will be bound and settled by the decree. The sub-claimant must make all persons parties whom the origi- nal claimant should ; and, in addition, that original claimant and all other sub-claimants of liens upon the property. His omission to make them parties imperils whatever decree he may obtain to the 3ame risks, as a similar omission on the part of the original contractor. Both classes would be compelled to refund out of whatever they BoUected such^ro rata share thereof as the omitted party or parties should prove they were entitled to ; and could be sued therefor if 3uch parties elected to proceed in that way for their share. Should the property be sold to a party to the proceedings, the court under whose decree it was sold would be compelled, at the instance of such omitted party, to set aside the sale, as long as such party held the title acquired by such purchase. If such omitted party were a purchaser from the owner, under sale by enforcement of trust deed, mortgage, or judgment, his title would not be affected by sale under such decree, but would be supe- rior to the title of the purchaser under that decree ; nor could such decretal purchaser interfere with his possession, or oust him by ejectment or other proceedings. The statute confers ample power upon the court to make all such persons parties ; and if the claimant fails to utilize these provisions so as to make the proceedings fully and finally settle his rights, it is his own fault. Only the Circtiit Court, or court of concurrent chancery powers, has jurisdiction to enforce a mechanic's lien. Where the suit is not to enforce the lien on the specific property, but is a mere action at law for damages, the suit may be brought in any court having juris- diction of the amount sued for. § 206. Bill or petition, when to be sworn to. — The bill or peti- tion, either of original, sub-contractor, or sub-claimant, need not be sworn to, except for general settlement under section 39. If under oath, an amendment need not be sworn to.' ' § 207. Petition of the original contractor. Requisites. — The petition of the original contractor must contain, if it is founded 1 Sec. 5, act 1874, as amended; Downey v. O'Donnell, 93 111. 559. Pleading and Pkactice. 139 on an express contract, a brief statement of that contract. If it is founded on a contract partly expressed and partly implied, or an implied contract, it shall state what character of contract it is. It must allege that this contract was made with the owner ; perform- ance, and when the work or delivery of materials was begun, and when it was completed; the filing of the claim as required, and set forth ; the amount dne and unpaid, and when it was dne ; give a description of the premises subject to the lien, and state what in- terest the owner has in them, and such other facts as may be neces- sary to a full understanding of the rights of the parties,' which will be hereafter treated of. § 208. Original contractor has two forms of action.— The original contractor is allowed two modes of procedure under the statute. 1. To enforce his lien for full performance of his contract.' 2. To enforce it on the quantum meruit for part performance where the owner has failed to perform his part of the contract.' § 209. Sub-contractor has five forms of action. — The sub- claimant has five statutory methods of action to collect his debt : 1. He can file his petition and foreclose his lien by the same method as the original contractor.* 2. He can sue the owner at law for the amount that the original contractor's statement shows he is entitled to, or where the owner, at the time of his own notice, has funds due the original contractor.' 3. After notice to the owner by himself as directed, he can bring suit at law against the original contractor and owner jointly for the amount due him, in any court having jurisdiction of the amount claimed to be due, and a personal judgment may be rendered thereon, as in other cases.* This can only be enforced by general execution, not by a sale of the improved property, and the same is the case where only the owner is sued at law.' If this suit be before a justice of the peace, and judgment ob- tained, and the execution issued thereon be returned not satisfied, a transcript of such judgment may be taken to the Circuit Court and spread upon the records thereof, and execution issued thereon as in other cases.' ' See. 5, act 1874, as amended. , i 5 Sec. 5, 1874, as amended; Downey v. O'Donnell, 93 III. 559. « Sec. 11, act 1874, as amended. * Sec. 37, act 1874, as amended. 6 Culver V. Fleming, 61 111. 498. « Baptist Church v. Andrews, 87 111. 173. ■> Sec. 38, act 1874, as amended. 140 Mechanic's Lien Law. 4. In case of several contractors' liens on the same land, any on© having such lien and fearing that there is not enough due the original contractor to pay all, can bring suit for a general settlement and distribution pro rata of what is coming to the original con- tractor among those entitled to it.' 5. In case of abandonment of the contract by the original con- tractor, he not only can, but must prpceed as is especially provided for such cases." These are all statutory, wholly, and in addition to his right of action at law against the contractor who employed him, who is his primary debtor, and against whom he can proceed at the same time he pursues his other statutory methods for relief — such action being as independent of the statute as ever, in no wise cur- tailed or interfered with by it.° § 210. Petition of sub-contractor. — The petition of the sub- claimant to enforce his lien must set out, the terms of the contract of the owner witli the original contractor ; that the sub-contract was within the power of the original contractor to make so as to bind the owner's property ; that a sufficient sum is due the original con- tractor to pay the petitioner ; set out his contract, if he has one, or state what it was ; that he has performed it, or what he did, and when he begun and completed his wprk, or delivery of materials j that he has given the notice pursuant to the statute, and when he gave it, and set it out in the petition ; or that the original contractor has given the owner notice of petitioner's claim pursuant to the statute, as the case may be ; then, as the petition of the original contractor, the amount yet due and unpaid and when it became dne, a descrip- tion of the property subject to the lien, the owner's interest therein, and such other facts as may be necessary to a full upderstanding of the rights of the parties.' §211. Where he sues for general settlement. — If there are several liens of sub-claimants upon the same premises, and any per- son having such lien shall fear that there is not a sufficient amount coming to the^riginal contractor to pay all such liens, such owner, or any one or more persons having such liens, may tile his or their ' Sec. 39, act 1874, as amended. 2 Sec. 45, act 1874, as amended; Schultz v. Hay, 62 111. 157; Biggs v. Clapp, 74 id. 335; Mehrle v. Dunne, 75 id. 239; Doyle v. Munster, 27 App. 130; Conklin v. Plant, 34 id. 264. ' Sec. 7. ante. * Thomas V. Industrial University, 71 111. 310; sec. 37, act 1874 as amended; sec. 5. act 1874. as amended; Marski v. Simmerliug, 46 App. 531; Havighorst v. Lindberp, 67 111. 463. Pleadin-g and Practice. 141 sworn bill or petition in the Circuit Court of the proper county, stating such fact, and such other facts as may be sufficient to a full understanding of the rights of the parties. The contractor and all persons having liens upon, or who are interested in the premises, so far as the same are known, or can be ascertained by the claimant or petitioner, upon diligent inquiry, shall be made parties. Upon the hearing the court shall find the amount coming from the owner to the original contractor, and the amount due to each of the persons having liens. The owner can file such bill whether sued or not, where two or more claim the fund that is owing.' If the amount so found to be coming to the contractor, shall be sufficient to pay such liens in full, the court shall order the same so paid.' In case the amount so found to be coming to the original con- tractor from the owner is insufficient to pay all the liens in full, it shall be divided between the persons entitled to such liens ^?'o rata, in proportion to the amounts so found due to them respectively.' The premises may be decreed to be sold for the payment of such liens as in other cases.' § 212. When original contractor abandons. — Where an orig- inal contractor has failed to complete and abandoned his contract, the sub contractor must proceed in a different way. He can file his petition in any court of record against the owner and contractor, setting forth the nature of the claim, the amount due, as near as may be, and the names of the parties employed on such house, or other improvement subject to liens, and notice of such suit shall be served on the persons therein named.'' This petition is not required to set out the original contract, nor to allege that there is any thing due the original contractor. The section of the statute applicable thereto does not proceed on the theory that there is any thine due the original contractor, but that the owner is liable for so much as the work and material are reason- ably worth, according to the original contract price, deducting rightful payments and damages for failure to complete.^ Where, in an action under this section, it was alleged that after the materials were furnished by the petitioner, and had been used in the building, but before the same was completed, D. (the original contractor) abandoned the work and surrendered to M. (the owner), ' Sec. 39, act 1874, as amended; Newhall v. Kastens, 70 111. 156; Hellman v. Sohnpider. 75 id. 422. ' Sec. 45, act 1874. as amended; Cnnklin v. Plant, 34 App. 364. ' Doyle V. Muuster, 37 App. 130; Mehrle v. Dunne, 75 111. 339. 143 Mechanic's Lieu Law. and that said unfinished building was, at the time of the abandon- ment, reasonably worth a large sum over and above the aggregate of amounts paid thereon, and of any damages sustained by reason of non-fulfillment of the original contract for erecting said building, which sum was greater than the amount petitioner claimed, the petition was held good.' § 213. Petition, general practice. — There is no peculiar rule of pleading especially and only applicable to petitions for mechanic's liens, other than the general rules of chancery practice ;' the aver- ment of facts showing statutory rights and performance of statutory duties, the only allegations peculiarly essential in these pleadings^ The rights sought to be enforced being wholly statutory, a party, to avail himself of the statute, must show by his pleadings that his case comes clearly within its provisions, must, by their averments, bring himself strictly within its terms, and show his right to the lien against those made defendants.' The petition should contain the necessary averments to show not only the sum of money that is due the plaintiff,* but that the debt is created by the performance of such labor as is secured by the statutory lien.' An architect cannot recover for services not per se architectural, nor as superintendent, unless employed as such, nor a superintend- ent for labor outside of a superintendent's duties, and the petition must aver employment for and performance of such services.'^ The petition must allege that the materials were bought, furnished for,' and used in the building sought to be charged with the lien,' not mer,ely tliat they were furnished to the contractor and used in the construction of it.' It is equally incumbent on the materialman or mechanic, in order to bring himself within the statute, to show affirmatively on the face of the proceedings that his claim is such as the statute confers a lien for, and that all the formalities for acquiring and fixing that lien have been complied with bj' doing the work or furnishing the material within the statutory time, filing the claim or serving the notice in like manner, making the payments per contract due within 1 Doyle V. Munster, 27 App. 130; Mehrle v. Dunne. 75 III. 239. 'Benner r. Schmidt, 44 App. 304; Portones v. Holmes, 33 App. 312. 8 Cook T. Heald, 21 111. 435; McLurkeu v. Logan, 23 id. 79; Sutherland v. Ryer- son, 24 111. 518; Crovyl v.'Nagle, 86 111. 437. * Kinney v. Hudnut, 2 Scam. 472. 6 Adler v. World's Pastime Co., 126 111. 373; 36 App. 528. « Sees. 70-72, ante. 1 Sees. 107, 108, ante. sCroskey v. Corey, 48 111. 443. Pleading and Pkacticb. 14a the statutory period, and setting forth those dates, and not for antagonistic creditors to show the reverse.' Time is the important part of the statutory requirement. No other lien is allowed to exist without formal record evidence, and the time vs^hen tlie contract was made, when the work or delivery of material was begun, and ended, when payment was agreed upon, or by law its promise implied, are matters the court must pass upon as statutory or not. Hence the necessity of the petition setting fortK these times instead of averring in an argumentative way, performed as the statute required, etc. It is just this statutory performance the court must pass upon from the facts alleged and proved." The filing of the claim or serving of the notice within the statutory time after the last payment was due, or cause of action accrued, is a material issuable fact, and must be averred, or the petition will not show a cause of action.' It is not enongli to aver the filing of the- claim with the clerk of the Circuit Court by an original claimant, or the service of notice on the owner by a sub-claimant without an averment of the time when, for a filing at the wrong time is as inefiScient as if not tiled at all. Where suit was brought on a note, in which was written " above sum due for work at my mill,'' and the petition alleged that the note was given for so much work done on the defendant's mill, it was held that the petition was insufllcient, and a demurrer thereto should, be sustained. That it did not appear whether the note was given in pursuance of that contract, or upon a subsequent agreement ; neither did it appear when the work was performed, nor at what time, by the terms of the original contract, it was to be paid for. The note, from anything that appeared, might have been given years after the work was done, and should have been paid for. All of which were fatal defects.* It is not suiScient simply to aver that notes sued ou were given for the amount due for work on, or materials used in, improvements on the maker's land. The petition must contain a statement of the cause of action, the time when the contract was. made what the contract was, within what time it was to be per- ' Brady v Andfirson. 24 111. Ill; Burkhart v. Reisig, id. 530; Phillips v. Stone, 25 id. 67; Columbus Machine Mfg. Co. v. Dorwin, id. 153; Scott v. Keeling, 25 id. 316; C. & St. L. R. R. v. Cauble, 85 id. 555; 4 App. 133; McDonald v. Eoseu- garten, 35 id. 71; 134 111. 126; Boals v. Intrup, 40 App. 62. 'Cook V. Heald, 21 111. 425; Cook v. Vreeland, 21 id. 431; Brady v. Anderson, 24 id. Ill ; Burkhart v. Reisig, 34 id 530. * Boals V. Intrup. 40 App. 62; Shinn v. Matheny, 48 id. 135; McDonald v. Eosen- garten, 35 id. 71; 134 111. 126; Campbell v. Jacobson, 145 id. 389; 46 App. 287. * Logan T. Dunlop, 3 Scam. 189. 144 ' Mechanic's Hek Law. formed, when what it obligated to do was commenced, when it was completed, and when payment was to be made; and show clearly on its face a right in plaintiff to recover.' The complainant must set out the contract, not only to show that he is entitled to the benefit of the act, but to apprise all parties in- terested of the nature and character of his claim.' § 214. If note taken it must be surrendered before decree. — And where suit is brought in a case where a note has been given the action cannot be maintained without a return and cancellation of the note.' Even a stipulation that the notes at the time of the filing of the bill were due and unpaid, and were dated and due for th^ amounts as charged, will not obviate the necessity of their production, sur- render and cancellation at the time of the trial.* Where the plain- tiff does not produce the note and offer to cancel the same, judgment should be for the defendant.' The fact that a party seeking to enforce a lien, took the note of the person for whom the work was done for the work and traded it off, and the note was not produced on the trial and offered to be surrendered, nor any excuse shown for its non-production, woiild warrant a judgment for the defendant.* The taking of the note, unless so intended and understood between the parties, is not a pay- ment of tlie debt : and where it is taken for the accommodation of the debtor who is in default and unable to pay, and with the under- standing that it is to be negotiated,.the act of negotiating the same adds no force to the act of taking it, nor does the further act of proceed- ing to judgment tliereoji by the holder." In either case the lien creditor before he can have -his decree, must be in control of the note or judgment, so allege, and offer to surren- der or cancel the same.' § 215. Petition must set out nature of contract. — The plain- tiff will be held to just what contract he sets out, and his claim gov- erned by the law applicable to the kind of contract sued upon." If lie avers an express contract, he cannot recover on an implied, or one partly expressed and partly implied.' And the construction on e?- ' Muller V. Smith, 3 Scam. 544; Logan v. Danlop, id. 189; Kinney v. Hadnut, 3 Scam. 473. 2 Clement v. Newton, 78 111. 437;'' Chisholm v. Williams, 138 id. 115; Kanka- kee Coal Co. V. Crane Bros. Mfg. Co., id. 637;" Bavard v. McGraw, 1 Bradw. 134." ' Austin V. Wohler 5 Bradw. bOO;" Adler v. World's Pastime Co., 36 App. 538; Belanger v. Hersey, 90 111. 70;' Carroll v. Crane, 4 Qilm. 563; Rowley v. James, 81 111. 398' Orundeis v. Hartwell, 90 id. 334; Driver v. Ford, id. 595; Douglas v. McCord, 13 Bradw. 378; Ruggles v. Blank, 15 id. 486. Pleading and Peactice. 145 press contracts and the averments necessary in snits thereon are the ^anie under the present act, as under the act of 1845/ If the contract is attached as an exhibit, and there is a discrepancy between that contract so attached and the description of it in the petition, the exhibit governs.' Where the petition alleged the contract to be an express contract and in writing, the proof showed it to be part written, part oral, but the contract was set out in extenso, it was held that the error in stating the legal effect was mere surplusage, would be rejected as such, and not condemned for variance.* In all eases the petitioner is confined to his own theory of his case, and cannot recover upon another, though it be proved and a proper •case for relief. Although a good case appear in the evidence, yet if variant to tliat in the petition, the petition will be dismissed. = The allegation and the proof must correspond, and a variance in the case •stated, and the ease proved will be fatal to the petitioner, no matter what the merits of the case are. He cannot make one case by his pleading, another hj his proof — however strong that proof may be.° The following cases will illustrate wherein a variance between the allegations of the petition and the proof was held to be fatal and barred recovery on the suit, as brouglit : Petition, alleged materials were furnished on an implied contract.' Proof, payment to be $50 cash, balance in thirty days. Held, an express contract ; variance fatal.* , Allegation to be paid in April. Proof, to be paid on delivery;, variance fatal.' Allegation, that the work was to be paid for on completion. Proof, to be paid for on a certain stipulated time, December 25, 1855 ; variance fatal." Allegation, 155 days, labor, to commence December 27, 1859, end June 25, 1860. Proof, commenced before Christmas, 1st to loth of December, and continued until after July 1st, 1860 ; variance fatal.'' Allegation, to build for $185, and complete January 6, 1857. Proof, built for $125, and completed March 1, 1857; variance fatal.' * Note 3, paa;e 144. *> Note 3, page 144. ' Benner v. Schmidt, 44 App. 304. * Haggles V. Blank. 1.5 Bradw. 436. = Tracy V. Rogers, 69 111. 662; Belangerv. Hersey, 90 id. 70. * Randolph v. Onstott, 58 111. 52. <■ Van Court v. Bushnell. 31 111. 634. « Bash V. Connelly, 33 111. 447. "> Martin v. Bversal, 36 111. 222. ^ Stein V. Schultz, 33 111. 646. 19 146 Mechasic's Lien Law. Allegation, hardware sold to E. A. li. at the usual market price. Proof, sold to E. A. E.. & Co., certain lines at a certain discount, nails at wholesale market price ; variance fatal.' But an allegation that labor was to be paid for when done, ma^ terials on delivery, is sustained by proof that no time of payments was specified, or agreed upon, for the law implies a promise to pay on performance." !Nor can the petitioner depart from his action on a contract of any sort and recover on a quantum meruit, no matter how much the evi- dence may show he is justly entitled to it.' Nor can he sue as a sub-contractor and recover as original contractor.* This variance must be objected to on the trial to'be availed of, and the court will allow an amendment on the trial to obviate vari- ance without a continuance, unless it is made to appear that the op- posite party is taken by surprise.' § 216. Must show completion within time limited by statute. — A petition on an express contract, which aveis that payments were to be made in installments of ten per cent from time to time, as work progresses, and fully made when the work was completed, and the work was to be completed within three years, is substantially good. The statute does not require a contract to state a particular date and day to make it valid as a lien, but simply provides that the time for completion shall not be extended for a longer period than three years from the commencement of work, or delivery of materials, nor the time of payment beyond one year from the time fixed for completion." a' statement of the gross amount due, the aggregate amount of credits, the net balance due and unpaid, was held sufficient ; that the amount due according to the contract was $13,248:94, on which there had been paid $6,550.02, leaving a balance due oi $6,705.92 and interest thereon, according to a bill rendered and approved by the defendant, substantially sufficient as to the sum due." § 217. Must show architect's certificate where contract re- quires. — Where the contract makes the architect's certificate a condition precedent, it must allege that the same was obtained, waived or excused in some manner recognized by law.' ' Peck V. Standert. 1 Bradw. 338. 2 Brady v. Anderson, 34 111. tit; Claycomb v. Cecil, 37 Id. 497. 5 Carroll v. Crane, 4 Gilm. 563; Kimball v. Cook, 1 Id. 433. « Douglas V, MflCord, 13 Bradw. 378. » Grundeis v. Hartwell. 90 111. 334; Driver v. Ford, id. 595. « Reed v. Boyd, 84 111. 66. ' Wolf V. Michaells, 37 App. 336; adv., 33 id. 645; McAuley v. Carter, 23 111. 53. Pleading and Peacticb, 147 Where a party wishes to attack an architect's certificate on the ground of fraud or mistake, the facts constituting such fraud or mistake must bo properly set out in the pleading, or no proof can be introduced in regard thereto. In the absence of some allegation that the architect either issued or refused to issue the certificate required, or statement of any mat- ter of excuse for failure to secure such certificates, tlie petition would be insufficient, and no evidence touching same could be ad- mitted. Where there was no such allegation, and parol evidence was ofEeredto show that the certificate had been issued, it was held that there was no foundation laid for the admission of such evi- dence, and its admission was erroneous.' Unless the contract requires the contractor to give the owner notice of having obtained the architect's certificate, suit may be brought without giving such notice, and no allegation thereof is necessary in the petition.' . § 218. Performance. — The petition must allege that the plaintiff has completed and performed his contract." It must truly describe the contract entered into, and what was done under it. If no time was fixed for performance, the law will imply a reasonable time ; and if done in a, year, the lien attaches. It is not n^ecessary, by ex- press words, to negative that part of the statute (section 3) which sets forth excepted cases in which no lien can exist, but only by affirmative description of the contract, and of acts done in performance of it, show what the whole case is ; and if, when so shown, nothing repugnant to the provisions of that section appears, the lien attaches.' Where a contract required a contractor to furnish the material and complete the building, but contained a clause that the owner was to pay a third party a certain sum by assuming bills for lumber for the building, and to a certain extent, and the balance of such sum when such third party completed the carpenter work, a petition by such contractor for a mechanic's lien, which set out these facts, and averred that the third party furnished the lumber and finished the carpenter work, and that the plaintiff furnished the material and completed the balance of the work, and that the entire work was completed and accepted by the owner, showed a performance of the contract by the petitioner, and was sufficient to entitle him to a lien. ' Wolf V. Michaelis, 27 App. 33fi; adv., 33 id, 645; McAulevv. Carter. 23 111. 53. = Warren v. Hams, 3 Oilm. 307; Hobart v. Reeves, 73 111. 527; Reed v. Boyd, 84 id. 66. ^ Portones v. Holmes. 33 App. 313. * Hobart V. Reeves, 78 HI. 537. 148 Mechan-ic's Lies Law. § 219. Estoppel, if relied on, facts set out must show.— If ownership by estoppel is relied upon, it must be alleged and the facts constituting such estoppel must be set out.' If the contract was made by agent, agency must be averred.* Where it appears the wife was the owner of the land, and had the evidence of her title on record, and the petition alleged a con- tract with the husband, that he was in possessibn and exercising acts of ownership over the land, and that the wife was personally cogniz- ant of the work and labor bestowed, and the making of the improve- ments thereon, the facts stated in the petition were held insufficient." If it intended to bind the wife by way of estoppel, the facts to be relied upon should have been alleged, and if it was iptejided to bind her by the acts of her iinsband as her agent, such agency should have been alleged. If he acted in his own name, but the wife was the undisclosed principal, such should be alleged.' § 220. Interest, if desired, must be shown. — If under the con- tract specific sums are agreed to be paid, interest need not be claimed, that follows as an incident of the debt,' otherwise it should be claimed in the petition. If not claimed it can only be recovered from the date of the filing the petition.'' § 221. Must give description. Petition. — The petition must contain a description of the premises, which are subject to the lien.' A correct description in the petition will cure an erroneous descrip- tion in the contract, as where it is described in the contract : Lot 1, block 2, Smith's subdivision, north-jwest quarter, north-east quarter, section 18, town 39, range 14; in the petition, lot 1, block 2, S. F. Smith's subdivision, north-east quarter, north-east quarter, section 18, town 39, range 14." When the contract is made the lot or land to be improved may be fully understood and considered by both parties, yet not described in the contract. The land with reference to which the contract is made, if not described in it, may be proved by parol evidence.' While the title to realty cannot be proved by parol generally, in these cases admissions in the pleading are sufficient proof thereof, 1 Geary v. Henuessy, 9 Bradw. 17; Campbell v. Jacobson, 145 111. 389. = Wilson V. Schuck; 5 Bradw. 572. 3 Heiman v. Schroeder, 74 111. 158; Downey v. O'Dounell, 93 id. 559. * Mills V. Heeney, 35 111. 173; Prescott v. Maxwell, 48 id. 83; Bace v. Sullivan, 1 Bradw. 94. " Sec. 5, act 1874, as amended. « riark V. Manninff, 90 111. 380. ' Burns v. Lane, 23 App. 504. Pleading and Practice. 149 and if the allegation of ownership of the property described is not denied by the defendant, it is taken as confessed and true." "Where the contract was for the improvement of lots owned by L. in the town of Waverly, the petition alleged L. owned lots 11 and 12 in block 7 in Waverly, and the answer did not deny owner- ship of the lots. Held, in absence of proof, that L. owned other lots, and on proof that he did own these, and they were built upon, the allegation was sufficient.'' This description should be sufficiently accurate for the officer's deed in event of the sale to convey it, for parties investigating with a view of purchase to identify and locate, and to give notice so as to create a lis pendens lien.' k. house situated in a tract of twelve acres in part of the north- west quarter of section 13, town 28, range 1, included in that por- tion known as William Campbell's addition to Galena, and the house designated as Argyie Cottage, in whicli the defendant now resides, was held to be insufficient, 6o indefiiiite that the premises could not be located.* A description which would be insufficient, as — Certain three acres lying in the south-east corner of the south-west quarter, north- west quarter, section 22, town 15, range 10 - — may be made good if attendant circumstances are averred to help fix the precise location, which by the aid of extrinsic evidence would enable any one to locate the precise premises ; as where the above description was fur- ther qualified by stating that, " the defendant is now owning and in possession of said land, as he has ever been since the time above mentioned, and in ,his own right is now holding, and has been so holding under a title bond for said land made by W. B. W.'" A mill at Marseilles, where the owner had no other mill, for machinery placed therein was held sufficient.' The number of the lot, block and street number, are sufficient, though the congressional subdivision is omitted. No. 181 South Leavitt street, Chicago, lots 8 and 19, block 1, Bank's subdivision, of lot 9, block 11, Rockwell's addition to Chicago, was held sufficient, and the objection to omission of con- gressional subdivision to be a frivolous objection.' 'Lavery v. Brooke, 37 App. 51. 2 Lombard v. Jolinson, 76 111. 599.. 3 Watson V. Gardner, 119 111. 312. ■• Turney v. Saunders, 4 Scam. 527. ' Quackenbusli v. Carson, 21 111. 99. 6 Strawn v. CogswMl, 38 111. 457. 1 Buckley v. Boutellier, 61 111. 393. 150 Mechakic's Lien Law. Where the material is to be used in a house in process of con- struction, the necessity of description in the contract is less strict. Where it was alleged the machinery was bought to be used in a mill then being built by the defendant, and the defendant was not engaged in building any other mill, it was held sufficient.' If the same building cover more than one lot and is under one roof, it must be averred that the labor was done, contract made or materials furnished to so improve tliese lots, and if so proved, the lien will extend to all, the same as one." But a correct description in the petition will not cure a defective description in the claim filed, and the lien extends only to the property described in the claim. § 222. By whom suit must be brought. — This statute does not change the relations of parties to contracts. The proper parties to bring an action in assumpsit on matters arising out of the con- tract, if no Hen existed, are the proper parties to enforce the claim of lien. The suit must be by parties in interest against the owner, but parties must have a joint interest to maintain a joint action." Where a contract was made in the name of one of the parties for the benefit of both, the petition, being governed by the rules of equity, may be in the names of both.* Several original parties, however, cannot join in a proceeding to enforce a mechanic's lien, unless they are jointly entitled to such lien. Where persons were partners, and as such contracted to build a house, and upon a settlement a note was given to one of the parties for a certain portion of the price, and to the other two for the resi- due, the interest of the one who received the note to himself alone thereby became severed from the other two, and they could not, therefore, join in a proceeding to enforce their mechanic's lien, but had to proceed separately, according to their respective rights, as fixed upon the settlement.' § 223. Partnership. — The constant changes occurring from death, disagreement, or the voluntary and friendly changes in plans of par- ties, as well as the formation of such after and in the midst of un- dertakings, present the same questions in regard to liens as other contracts. Neither the formation nor dissolution of a partnership 1 Power V. McCord, 36 111. 214. "> Orr V. N. W. Mut. Life Ins. Co., 86 111. 360; Seller v. SohaefEer, 40 App. 74. 3 Lombard v. Johnson, 76 111. 599. " Roberts v. Gates. 64 111. 374. ' Bush V. Connelly. 33 111. 447. Pleading and Practice. 151 could have any other effect upon contracts for building than those for other purposes. Where work is being done for a partnership, its dissolution does not affect the lien on the property. If the firm orders improve- ments on the land of one, the claim is a lien upon the land as well as a debt of the firm.' Where, after contract, the partnership is dissolved, and the remain- ing member continues on, in and completes the work, the partner- ship character continues in him so far as to enable enforcement of the lien and collection of the debt. If one dies, the survivor can prosecute the lien in the name of the firm for the use and benefit of himself. It has been held that where one makes a .contract to furnish mate- rials and takes in a partner for future work, only, and they continue to fill the contract, that a judgment could not be rendered for one for what was due him, for the firm for what/ was due it in the same action. Justice Walker dissented, and held there was an implied contract with the firm. This is unquestionably the case under the law at present, but would require proceedings from filing claim to final action to be separate.' The individual should sue for the amount due him, the firm for the amount due it, having, in the same way, previously filed claims or served notice, as their position as original or sub-contractor re- quired. It would be the safer course for the new partnership, by arrangement between themselves, to have the one who originally made the contract complete it in his own name, and enforce the lien in the same manner. § 224. Who must be made parties defendant. — In proceedings under this act, all persons interested in the subject-matter of the suit, or in the premises intended to be sold, may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment.' Parties in interest, within the meaning of this act shall include all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions of this act.* When any defendant resides or has gone out of the State, or on due inquiry cannot be found, or is concealed within this State, so I Croskey v. N. W. Mffr. Co., 48 111. 481. » Roberts v. Gates, 64 111. 374. " Sec. 13, act 1874, as amended. ■• Sec. 13, act 1874, as amended. 163 Mechanic's Lien Law. ■ that process cannot be served upon him, the complainant or peti- tioner may cause notice to be given to him in like manner and upon the same conditions as provided in suits in chancery.' For the purpose of bringing all parties in" interest before the court, the court shall permit amendments to any part of the plead- ings, and may issue process, make all orders requiring parties to ap- pear, and requiring notice to be given, that are or may be author- ized in proceedings in chancery, and shall have the same power and jurisdiction over the parties and subject, and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is otherwise provided in this act.^ If other liens or incumbrances exist by mortgage, judgment or otherwise, the parties holding them must be made parties, or their rights cannot be afEected.' Failing by the exercise of reasonable diligence to ascertain whom they are, they may be described and proceeded against as unknown holders of such notes or securities, as in other cases in chancery, and their rights adjudicated in the same manner.' Where previous trust deeds or mortgages exist, the cestui que trust, as well as trustees, must be made a party, or he will not b& bound by any decree that may be obtained.' But if the cestui que trust is made a party, the trustee not, and he allows a trial on the merits of the case, without objecting to the non-joinder of the trus- tee, he and those claiming under him will be bound by the decree- rendered." § 225. Active trust. Cestui que trust not necessary party. — "Where the trust is an active one, imposing on the trustee the duty of receiving, controlling and managing the trust fund for the bene- fit of the cestui qite trust, the rule is different, and such trustee only may be made a party; but where the trustee is interposed be- tween borrower and lender merely for the purpose of enabling the lender to obtain payment through the exercise by the trustee of the , t , ' Sec. 7, act 1874, as amended. ' Sec. 9, act 1874, as amended. 3 McLagan v. Brown, 11 111. 519; Kelly v. Chapman, 13 id. 530; Steigleman v. McBride, 17 id. 300; Williams v. Chapman, id. 438; Raymond v. Ewing, 26 id. 339; Radoliffi v. Noyes, 43 id. 318; Lomax v. Dore, 45 id. 879; Clark v. Moore, 64 id. 273; Mehrle" v. Dunne, 75 id. 339; Dunphy v. Riddle, 86 id. 23; Growl v. Nagle, id. 437; Clark v; Manning, 90 id. 880; 95 id. 580; Price v. Hudson, 135 id. 385; Rcae v. Sullivan, 1 Bradw. 94; Ridenour v. Shideler, 5 id. 190; Lamb v.. Campbell, 19 id. 272. ^ Phoenix Mut. Life Ins. Co. v. Batchen, 6 Bradw. 631; Bannon v. Thayer, 134r 111. 421; 34 App. 428; Columbia B. & L. Assn. 25 id. 429. 6 Note 5, sec. 324; Paddock v. Stout, 131 111. 571; 23 App. 65. « Bennit v. Star Mining Co., 119 111. 9. Pleading and Peactioe. 153 powers conferred upon him by the mortgage or deed of trust, and the trustee can only be called upon to act in case of default of the borrower in performing the conditions of the trust deed, both the trustee and cestui que trust are necessary parties.' § 226. Heirs. — Where the owner dies, his heirs, having a direct inte;"est in the land, as well as executor or administrator, are neces- sary parties. §227. Defunct corporations not necessary parties. — Where a corporation, with whom a contract was made to erect a bnilding, ceases to exist, as a church, and it becomes disorganized, it is not necessary to make such body a defendant on petition to establish a mechanic's lien." § 228. Unpaid claimants necessary parties. — A sub-claimant seeking to enforce a lien as against the owner for labor or materials, is required to make all unpaid persons parties, who have done work or furnished materials for such building, defendants ; also, subse- quent purchasers, mortgagees, judgment-creditors, and any others who have record liens of any nature upon the property, no matter when their rights attached to the property. If it appears from the record there are such who have not been made parties, the decree will be reversed on appeal." Those whose claims are not yet due and for that reason unable to institute suit, are necessary parties, and where such suit is brouglit by another, may come in whether made parties or not, and be allowed tiieir claims with a reduction of interest from the time allowed to when due.'' § 229. Tliose not made parties not cut off. — Where a purchaser contracted for the erection of a house, but previously conveyed the property to a trustee to secure the balance of the purchase-money, the mechanic filed a bill to enforce his lien, making the purchaser alone a party, and obtained a decree under which the mechanic be- came the purchaser at the judicial sale ; subsequently the trustee sold the premises under the trust deed, and A. became the purchaser. It was held the sale under the mechanic's lien decree did not affect the interests of the trustee or cestui que trust, inasmuch as they were not made parties, and the title of A. was superior, claimin- ■ McGraw v. Bayard, 96 111. 146. « Jennings v. Hinkle, 81 111. 183. » Mehrle v. Dunne, 75 111. 239; note 5, sec. 224. * Sec. 16, act 1874, as amended; Cox v. Keiser, 15 Bradw. 482; Sharkey v. Mil- ler, 69 111. 560; McGraw v. Bayard, 96 id. 146; North Pres. Church v. Jevne, 32 id. 314. 20 154 Mechanic's Lien Law. under a prior lien to that of the mechanic. All persons interested in tliG premises should have been made parties to the proceeding to enforce the lien.' A sale under a decree to which a person in interest is not made a party is a nullity as to him. The same rule prevails as to judgment- creditors.' If a prior incumbrancer is not made a party, the subse- quent lienholder takes subject to his claim." ' Where a purchaser under a prior judgment was not made a party to proceedings to enforce a mechanic's lien, it was held that -a sub- sequent sale under the mechanic's lien decree conferred no title on the purchaser, and an action in ejectment by the latter could not be maintained. ° Where suit is brought to cancel, a deed for fraud against one who has built on the property conveyed, and suits are pending by mechanics to enforce liens for such building, those mechanics are indispensable parties to the proceeding, and it is improper for the court to proceed with the case until they are made such and their interests ascertained.' Where the petition alleges the husband has an interest in the land and the demurrer, being general, admits it, he is a necessary party.' § 230. Improper parties. — Those who have been paid,' the wife, where only the husband's own fee or his dower estate in her property is sought to be subjected to the lien,' and the landlord, where only the tenant's estate is sought to be subjected to the lien,' are not only unnecessary, but improper parties. In such case the wife has no estate to entitle her to become a party, either on her own or other application, nor can her interest be affedted if she be made a party and defaults.' The same rule prevails. as to the landlord." § 231. Those acquiring interest pendente lite proper, but not necessary parties. — A new party acquiring interest pendente lite is a proper, but not necessary party," and may, if he please, make 1 Lomax v. Dore, 45 111. 379; Kelly v. Chapman, 13 id. 580; McLagan v. Brown, 11 id. 519. ' Clark V. Moore, 64 111. 373. 2 McLagan v. Brown, 11 111. 519; Williams v. Chapman, 17 111. 433. * RadelifE v. Noyes, 43 111. 818. 6 Greenleaf v. Beebe, 80 111. 520. "McLagan v. Brown, 11 111. 519; Kelly v. Chapman, 13 id. 530; North Presby- terian Church V. Jevne, 33 id. 314; Lomax v. Dore, 45 id. 379; McGraw v. Bayard, 96 id. 146. ' Gove V. Gather, 33 111. 634; Schnell v. Clements, 78 id. 613. (What is known at common law as estate by curtesy is dower in Illinois.) 8 Judson V. Stephens, 75 111. 355. 'Phoenix Mut. Life Ins. Go. v. Batchen,6 Bradw. 631. Pleading and Practice. 155 himself a party by supplemental bill. He cannot by petition pray to be admitted as a party defendant. Where he is made a defend- ant, his position is the same as his assignor, and he can avail himself of the answer of his assignor.' § 232. Ameadinents. — For the purpose of bringing all parties in interest before the court, the court shall permit amendments to any part of the pleading.-s, and may issue process, make all orders requiring parties to appear, and requiring notice to be given, that are or may be authorized in proceedings in chancery, and shall have the same power and jurisdiction over the parties and subject, and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is otherwise provided in this act." ' A material and substantial amendment of the petition within ten days of the commencement of the term entitles the defendant to a continuance, and it is error in the court to refuse it.' An amendment to obviate variance, or for other reason, may be made on the hearing. If the opposite party is surprised thereby, a continuance should be allowed him.' §233. When a new cause of action. — An amendment of a petition, although technically it may set out a new contract, will not expose the cause of action to the bar of the statute limiting the time for filing a petition.' Where suit was brought in the name of a firm, and the petition set out a contract with the firm, the amendment set out a contract with the individual member of that firm, who, after its dissolution, made the contract, and also material changes in the description of the contract in the original petition, making it technically a different contract, but the same cause of action against, the same parties was set out in the amendment, and the contract therein was the same one upon which the action was originally intended to be brought; the court held that such amendment was not acommencement of the suit ; that there was an error in the recital of the contract in the first in- stance; that it did not differ in principle from any other amendment of a pleading by which an error in the description of a contract is corrected; that the suit was commenced on the date of filing the original petition ; that in applying the statute of limitations the iden- iLuntv. Stephens, 75J11. 507. 2 Sec. 9, act 1874, as amended. 'Link V. Architectural Iron Works, 24 111. 551. ■•Downey v. O'Dbnnell, 93 III. 559; Driver v. Ford, 90 id. 595; Martin v. Ever- sal, 36 id. 333; liittlefield v. Schmoldt, 84 App. 634. » Phoenix Mut. Life Ins. Co. v. Batchen, 6 Bradw. 631. 156 Mechanic's Lien Law. tity of the original and amended petitions is not to be determined by rigid and technical rules, but is a matter in the discretion of the court.' \ So where there is a suit by a firm, change of firm who carry out the contract, all parties agreeing, and a new petition by the new firm, the first suit filed was lield to be the commencement of the suit.* § 234 SummonSj service of, personal. — Upon the filyig of such bill or petition, summons shall issue and service thereof be had, as in suits in chancery." The fact that the summons is at law, the case is on the .chancery side of the docket is no ground of objection." In case alias suminons be issued, only the names of those not served need be included." § 235. Service by publication. — When any defendant resides or has gone out of the State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, the complainant or petitioner may cause notice to be given to him in like manner, and upon the same conditions as provided in suits in chancery.' Service by publication is equal to personal ser- vice.' Publication is governed by chancery practice, and may be made by the clerk on proper afiidavit, an order of court not being neces- sary therefor, and judgment in personam may be rendered against one summoned by publication.' § 236. Appearance by solicitor. — Where defendants appear by solicitor, neither summons nor publication is necessary,' but where one is not served, such appearance is regarded as only for tbose served." The object of service of process or publication is to bring parties before the court. Where all of the defendants appear it is imma- terial whether they have been served, or publication has been made, as they are in court by appearance. Where the record recites that the parties came by their solicitors, it will be presumed that all, and not a part only, of the parties entered their appearance, as well those as those who have not been served.' ' Phoenix Mut. Life Ins. Co. v. Batchen, 6 Bradw. 631. i « Workv. Hall, 79111. 196. ' Sec. 6, ant 1874, as amended. « Reed v. Boyd, 84 III. 66. ^ See. 7, act 1874, as amended. 6 Gould V. Garrison, 48 111. 258. ■> James v. Hambleton, 42 111. 308. * RadclifE v. Noyes, 43 111. 318; see per contra, note 9. 3 Gardner v. Hall, 29 111. 277. Pleading akd Practice. 157 § 237. Answer. — The answer must be under oath unless the pe- titioner waives the requisition therefor." "Where the answer is sworn to, it has weight as evidence so far, as responsive to the petition, the same as the testimony of a witness," and is not equal to,° but must be overcome by two witnesses, or one and strong corroborating circumstances.^' Where the oath is waived, though sworn to, it is not evidence, and has no other weight than answer not sworn to.* To be used as evidence it must be responsive to the allegations ol the petition, fully so, but no more.' Answer of set-off is not re- sponsive, nor payment to a third party, unless averred and sworn to be at the request of the plaintiff." It is not evidence where it sets up a defense, and should be objected to, and answer of no means to determine the correctness of the items charged, and, therefore, deny them, is evasive, such mental reservation as equity abhors, and equal to admission of the facts charged.' Nor is on information and belief sufficient to make it evidence.' New matter set up in the answer is regarded as surplusage and mere pleading and cannot be used as evidence.'' § 238. Damages cannot be recoyerved. — It cannot be made a cross bill for damages. Such can be set up as matter for defense only." After the defendant has answered the allegations of the petition, there is no objection to stating new matter in defense, entitling him to such relief as he would be entitled to on a crossbill, nor need such be detached from his answer. It is not vicious to reply in the same paper to one plea and demur to another, or in the same manner to plead to one count and demur to anotiier." If an owner be apprehensive' that the lien suit is brought to cloud his title and force him to settle an illegal claim, and that the same might be dismissed, allowing the claim filed with the clerk to remain as a cloud on the title until the period for foreclosing same had 1 Sec. 10, act 1874, as amended; Kimball v. Cook, 1 Gilm. 423. ' Kimball v. Cook, 1 Gilm. -423; Morrison v. Stewart, 24 111. 24; Moore v. Smith, id. 513; Gregg v. Renfrews, id. 621; Martin v. Eversal, 86 id. 222; Tracy v. Eogers, 69 id. 662; L. S. & M. S. H. B. v. McMillan, 84 id. 208. 3 Morrison v. Stewart, 24 111. 24. ■■ Cl8,rk V. Boyle, 51 111. 104; Tracy v. Rogers. 69 id. 662. 6 Lake Shore & M. S. R. R. v. McMillan, 84 111. 208. « Gregg V. Renfrews, 24 111. 621. '' Garrett v. Stevenson, 8 Gilm. 261. « Cunningham v. Ferry, 74 111. 426. » McCarthy v. Neu, 93 111. 455. " Thielmaii v. Carr, 75 111. 385. 158 Mechanic's Lien Law. passed, he could make his answer a cross bill to clear such cloud from his title, prevent the aggravation of delay by such dismissal and force the trial of the case. § 239. Cross bills not iiecessary in mechanic's lien proceed- ing. — Where other lienholders are made parties, their answers are in the nature of cross bills and should set forth their rights as original petitions, though it is not necessary to uiake themycross bills.' When brouglit before the court, all are actors, whether plaintiff or de- fendant, their rights are statutory and subject to the same strict con- struction in their adjudication.' The proceedings under the statute is to subject the property, not to the payment of the petitioner's claim alone, but to make it a fund for the satisfaction of all the liens established, and a party, under his answer, whether brought into' the court by service, or who inter- venes, is required to prove his claim, and, when proved, is entitled to share in the fund. It is not necessary for such defendant to file a formal cross bill. Such co-claimant, as a prior incumbrancer, may make his answer a cross bill and ask affirmative relief.' The fact of a lienholder or claimant being made a party de* fendant by a plaintiff in a suit to enforce a mortgage or lien does not release him from the obligation of setting f oi'th his claim in his answer as fully as in an original petition. An answer by a mechanic setting up the claim of his lien while not a cross bill, is in the nature of one. lie can make it a cross bill against the plaintiff, or any co-defendant.' He is at liberty to defeat the claim of the original petitioner, whether he be incumbrancer or lien claimant, if he choose, and can thereby better secure his own claim, or increase his proportional share of the com- mon fund arising from the sale of the property, or from what is due from the ov/ner by decreasing the number of claims and claimants- who can share in it.* Therefore, his own cause of action should be set forth with sufficient breadth and particularity to sustain the case,, if they be defeated. In these proceedings, to a large extent,, every claimant of a mechanic or other lien upon or interested in the prop- erty, is an Tshmael ; every claimant an antagonist. Any lien claim- ant can interpose the same objections to a coclairriant's lien that the owner could, can even attack an incumbrance or lien where the owner would be estopped to do so. The collection of his own debt is what each one is after, and, if by defeating any, or all other ' Ttiielman v. Carr, 75 111. 385. '' Sutherland v. Ryerson. 24 111. 518, 3 Culver V. Elwell, 73 111. 536. * Sec. 18, act 1874, as amended. Pleading and Pkacticb. isg claims, he can better achieve this end, the statute gives him the privilege, to do so.' § 240. Assignee of incumbrance must aver he held same at time the suit was begun.— The holder of trust deed or mortgage notes must aver that he held such at the time of the institution of the action." Jf the assignee of a mortgage indebtedness would pro- tect himself under a proceeding for mechanic's lien, he must show that at the time of the institution of proceedings to enforce the lien he was in possession of the securities.' In the absence of such proof, it will be presumed that they remained in the hands of the assignor until after the date of filing the petition for a lien.' § 241. Incumbrancer cannot by answer set up claim for ma- terials furnished. — Where a mortgagee sets up a claim for mate- rials furnished, he must do so by cross bill, and not merely set up same in his answer setting up his mortgage claim." If the mortgage does not provide for repairs to be made by the mortgagee, his rio-hts to recover therefor rest on the statute, as that of any other person, and must be so set forth to recover, by proper pleading, as well as be acquired by all the preceding steps necessary for an original or silb-blaimant, whichever he may be.' § 242. Limitations must be pleaded.— If he be a prior or sub- sequent incumbrancer and seeks to make his a preferred claim to that of the petitioner, by reason of the limitations running in his favor, because not made a party in tfme, he must plead such to avail. ° So where a trustee, but not the cestui, is made a party within the statutory period, and objection is not in any way set up in the lower court, it cannot be enforced on appeal, as the statute of limitations should have been pleaded or insisted upon, by the answer, to have entitled the party to the benefit of it.' § 243. Defense, how set up. — There are no particular rules for setting up matters of defense. The answer should set up the facts which the defendant relies upon therefor. He may traverse the allegation of doing the work or furnishing the materials ; the amount claimed ; or set up that the work was not done in the period stated, or allowed by the statute, or waived by taking other security, or payment, or release, or damages in consequence of delay in, or de- ' Sec. 18, act 1874, as amended. ' Austin V. Wohler, 5 Bradw. 300; Phoenix Mut. Life Ins. Co. v. Batchen, 6 id. 621. 3 Howett V. Selby, 54 111. 151. * Seller v. Schaefer, 40 App. 74. ' » Gardner v. Hall, 39 111. 277. ' Barstow v. McLachlan. 99 111. 641. 160 Mechanic's Liek Law. fective manner of the work. The pleadings should show whether the issue be one of fact or of law. § 244. Defendant may Ibuy outstanding title. — The defense may depend entirely. upon the claim set up, not upon the party's original position who sets" it up. There is no obstacle \o the pur- chase by the defendant of a superior title to that of the complainant from a person not a party, and the setting up of such title to defeat the complainant's equities, though the party doing so is, as to his other particular and personal claim, bound by the Us pendens.' A contract was made November 10, 1883, completed December 4, 1883, notes given, the last maturing in seven nonths, July 7, 1884, and suit to enforce the lien was brought Dpcember 27, 1884, wherein one Dwen was made a party as holding some claim as pur- chaser, mortgagee, judgment-creditor or otherwise. October 5, 1886, Dwen answered, claiming title in fee and pleading limitation by reason' of failure to bring suit within six months after maturity of claim. January 8, 1884, Darlow recovered judgment against the owner; , February 25, 1884, purchased the property in question under said judgment; December 28, 1885, assigned the certificate of purchase to Dwen, and the premises not being redeemed, the sheriff executed a deed therefor to Dwen, January 12, 1886. The court held, that as to Darlow's judgment the limitation began to run July 7, 1884 ; that he not being made a party in time, the lien was barred as to him ; that Dwen, though a party, could assert the ■rights of his assignor, Darlow, conferred upon him by his purchase.' Between original contractor and owner plea of set-off, counter- claim or other defense is allowable. Between sub-contractor on the one side, and original contractor in personam and owner in rem, the original contractor can set up any matter of defense that he could in a commoti-law action against him alone, and if he prpve an excess of indebtedness in his favor, recover a judgment against the sub- con tractor, but the owner could not. The contractor would have the right to make any defense that he could in ahy other ordi- nary action ; the owner can only defeat the lien. § 245. Averments in case of abandonment. — In case of aban- donment where the owner relies on the fact that the sums he has paid the contractor before he abandoned the work, and the cost of conbpleting the building, amount to more than the contract price, he must aver in his answer that the sum paid the contractor was due when it was paid ; that the aggregate liens sought to be foreclosed ' Douglas V. Daviesi 33 App. 018. ' Pleading akd Peactice. 161 exceed the amount which was to be paid the contractor, and that the sum paid out by him after the abandonment by the contractor was paid to complete the building according to the terms of the contract.' The owner is not compelled to pay any thing to a sab-contractor when he is compelled to exhaust the original contract-price to com plete the building, and such is a complete defense to the asserted liens,' except the ten per cent provided for by section 33 in favor of laborers. § 246. Averments as to non-ownership. — Where the ground had been built on without defendant's authority, is a good defense, but that defendant is not the owner of the ground at the time of insti- tution of the action, without the allegation that he was not at the "time the contract was made, would be bad.' § 247. Plea in abatement not good. — Plea of other action in abatement is not good. In such case the proper method is to move to consolidate the causes.* § 248. Replication must be general. — The plaintiff shall reply to the answer of the defendant and this pleading concludes the issues." The general replication puts the entire answer in issue.' The owner should have opportunity to reply to the answers of parties brought in, for such are in the nature of cross-bills, and it is error to force him to trial without allowing opportunity to do so.' As in chancery cases, no rejoinder can be filed, the replication must, of course, be general, and hence if the answer sets up new matter, which requires to be admitted or avoided, or otherwise specially replied to, it must be done by amending the bill, and inserting the new matter in the charging part, and then explaining it, as in ordinary chancery cases. Where a defendant tiled a rejoinder to the plaintiff's replication and the plaintiff demurred thereto, it was held that the ease stood on the bill, answer and replication ; that the demurrer was filed to a paper that did not properly belong to the record ; that in that state of the pleadings' the court should have proceeded to the trial of the case.' ' Biggs V. Clapp. 74 111. 335; Morehouse v. Moulding, id. 333; Culver v. El- well, 73 id. 536. = Schultz V. Hay, 63 111. 157. ' Austin V. Wohler, 5 Bradw. 300. * Thielman v. Qarr, 75 111. 385. ' Sec. 10, act 1874, as amended. • Shaeffer v. Weed, 3 Gilm. 5ll; Kimball v. Cooki 1 id. 433. ' Culver V. Elwell, 73 111. 536; see, also, Linnemeyer v. Miller, 70 id., 344; Person v. Smith, 30 App. 103. 21 162 Mechanic's Lien Law. § 249. Demurrer as in other chancery causes. — Demurrers, general or special, under this statute may be availed of as in any other action, should be framed as in general practice, have the same effect, and are burdened with the same consequences. A general demurrer to the whole complaint cannot be sustained if it be good in part. Where the statutory'- grounds for a lien, filing of the claim, giving of the notice, or lack of other facts sufficient to constitute a cause of action or ground of defense are omitted, a demurrer is the proper method to reach these dpfects, without the delay, cost and vexation of answer and trial. Where the petition is for work or labor for which the statute does not give a lien, or by a party to whom a lien is not allowed, as a sub-claimant of a sub-claimant, a demurrer would be fatal. And some formal objections which might be fatal on demurrer are regarded as waived after pleading to the merits of the case. Where a bill of review was brought, which was insufficient and defective in failing to bring before the court a complete copy of the bill and decree sought to be reviewed, and the defendant failed to demur to the same, it was held advantage could not be taken of the defect on appeal.' If the petition does not state a time for completion and payment,, and is not demurred to, but answered, a trial is had and the proof shows that the time for completion and payment are within the statutory period, it is too late to object to such defects in the court appealed to. Such defects should be demurred to in the lower court.' If a prior incumbrancer is not made a party, the defendant should demur to the bill, if he thinks such a necessary party. A demurrer for want of proper parties must show on its face the specific ground of demurrer. Claiming in an answer in a general way the advan- tages of a demurrer will not present the question of want of proper parties.' Failing to aver the filing of the statement with the clerk of the Circuit Court is a fatal omission in a petition by an original claimant and reached by a general demurrer.' 1 Judson V. Stephens, 75 111. 255. ' Brown v. Lowell, 79 111. 484; Warren v. Harris, 3 Gilm. 307; Heiman v. Schroeder, 74 111. 158. s Portones v. Badenoch, 133 111. 377. * Boals V. Intrup. 40 App. 63; Shinn y. Matheny, 48 id. 135; Campbell v. Jacob- son, 46 id. 387; 145 111. 389. Pleading akd Practice. 163 A petition wiii not be detnurrable because it does not show the parties for whom the building was erected to be the owners of the land, since under the law the interest, whatever it may be, of a party in possession who makes the improvement, may be sold, a purchaser taking the title as against him.' A demurrer on the ground that other suit at law is pending in the same or other court between the same parties and for the same cause of action is improper ; and also where parties in pending suits to foreclose a lien intervene in another for the same purpose. The proper course in the latter case being a motion to consolidate the different suits." A demurrer to a cross-bill for damages is properly sustained. Such are recoverable only at law, not in suits under this act.'' § 250. Suits on chancery docket. — Suits instituted under the provisions of this act must be placed upon the chancery docket, and stand for trial as other suits in chancery.' The trial may be by the court, or by a jury under the direction of the court, as the court may direct, or the parties agree,^ and oral evidence may be heard, as well as other, by the court, though trying as a chancery case. The iinding of the jury is merely advisory, which the court may disregard, set aside, or correct, if incompatible with the testimony. This action is of the court's own motion, and doing or not doing, is not error to appeal from." When there are several lien claimants entitled to participate in the fund, in order to find the amount due each claimant, if it be provided that a jury shall pass upon them, it is the better practice to submit each claim to a distinct jury, as if it were a separate pro- ceeding; but where there are few claimants, and there is no com- plication, it would not probably be objectionable to submit all the claims to the same jury.' - § 251. Consolidation of cases.— Contrary to general chancery practice, which is opposed to the consolidation of different cases having different parties and involving different rights, where there are different lien suits by the original and sub-claimant against the owner, botlr relating to the same subject-matter, the court should > Steigleman v. McBride. 17 111. 300. » Thielman v. Carr. 75 III. 385. ' McCarthy v. Neu, 93 111. 455. ■• Sec. 8. act 1874. as amended. ' Sec. 10, act 1874, as amended. « Sharkey v. Miller, 69 III. 560: Kimball v. Cook, 1 Gilm. 423; Garrett v. Steven- son 3 id. 261; Schnell v. Clements, 73 III. 613. ' Power V. McCord, 36 111. 214. 164 Mechanic's Lien Law. order the same consolidated, and where such suits are pending in difEerent courts, the court will on motion order all consolidated, and either transfer the suit before it to the cither court, or order suits there transfefred to it.' § 252. Trial should be prompt. — Parties whose issues are made up are entitled to be promptly heard, whether others who assert dis- tinct claims are ready for trial or not.' In no case shall the want of preparation for trial of one claim de- lay the trial in respect to others, but trial shall be had upon issues between such patties as are prepared, without reference to issues between other parties ; and when one creditor shall have obtained a decree or judgment for the amount due^ the court may order a sale of the premises on which the lien operates, or a part thereof, so as to satisfy the judgment, provided, that the court may, for good cause shown, delay making any ordet- of sale or distribution until the rights of all parties in interest are ascertained and settled by the court.' § 253. Decree. — The court's remedial power is predicated solely upon the existence of a statutory lien, exercised only upon statutory ground. The court must first decree a lien. If ho lien is decreed there can be no decree for any thing.' Where property becomes divested of a mechanic's lien by reasoh of a sale under a prior incumbrance, so that it cannot be sold to satisfy the mechanic's demand against his employer, no decree should be entered, except for a dismissal of the petition. In such case it is error to render any decree against the party for whom the work was done or materials furnished.* Where a contract is made with the owner of real estate for the furnishing of materials and labor to improve the property, pending a bill to foreclose a prior mortgage on the same premises, ^a decree and sale under the bill will cut ofi all rights of the mechanic or ma- terialman for a lien, and a bill to enforce the lien would have to, be dismissed.* The decree is the final administration of this general assigtiment in rem, or wrecked estate, enforced on the- contract and under the statute. It should adjudge, therefore, the existence of contract rela^ I Thielman v. Oarr, 75 111. 385; Schnell v. Clements, 73 id. 613. ^ Sec. 30) act 1874, as amfended; » Green v. Sprague, 120 111. 416 » ; Mattin v. Swift, id. 488; O'Brien v. Graham, 33 App. 546; Sprague v. Green, 18 Id. 476; Swift v. Martin, 20 id. 515; 37 id. 117. Pleading and Peacticb. 165 tions between the parties and their statutory performance." It should show from what tinie this lien attached. For a decree giv- ing a lien prior to the date of the contract is erroneous.' If, how- ever, third parties are not affected thereby, this is not cause for reversal." The petition, proof and decree must correspond.' Being a final administration of the estate affected, it must partition same among all those interested in it according to their intprests, turn it into money, bj which alone this can be done, give a clear title ao'ainst all parties to the action to whomsoever pays that money for it, and ascertain and settle the interests of all parties before it, before order- ing sale, or the decree will be erroneous.' . If it appears by the plead- ings, or is disclosed, that there are parties interested who are not made parties, a decree without having them made parties and set- tling their interests is erroneous.* It is no error to find the amount due one ])arty and not order a sale of the property until other in- terest^ are adjusted,* The correct practice is not to render a decree until the rights of all claimants are found and determined.' It is improper to find the amount due one claimant, and decree a sale, without passing upoa the rights of other claimants who have been made parties, and who may be entitled j?ro rata to the proceed^." If some of the incum- brances be prior, some junior to the mechanic's liens, the decree should declare the order of their payment." The statute contem- plates that all parties interested in the property shall be made parties. This makes it the duty of the court to adjudicate upon the rights of all parties, and direct the application of the proceeds' of the sale to be made to such in proportion to their several amounts, and that the sale may convey an unclouded title." Where there are conflicting claims to priority of payment out of the proceeds of the land about to be sold to satisfy the liens upon it, the court, in order to prevent the danger of sacrificing the property by discouraging creditors from bidding, should determhie the pri- orities, and it is error merely to decree a sale and direct the proceeds to be brought into court without so doing.^ 1 Seller v. Schaefer, 40 App. 74; N. P. Church v. Jevne, 32 111. 214. *> Nibbe v. Brautn, 34 111. 268. ' Seller v. Schaefer, 40 App. 74; North Pres. Church v. Jevne, 38 111. 314 ** * Power V. McCord, 36 111. 314 ■>• ; Martin v. Bversal, id. 222; Radcliff v. Noyes, 43 id. 318; Lomax v. Dore, 45 id. 379; Tracy v. Rogers, 69 id. 663; Lunt v. Stephens 75 id. 507; Eace v. Sullivan. 1 Bradw. 94; Ogle v. Murray, 3 id. 343; Clark V. Manning, 4 id. 649; 90 111. 380; Miller v. Ticknor, 7 Bradw. 893. ° Sec. 20, act 1874, as amended; Martin v. Eversal, 86 111. 233. « Croskey v. Corey, 48 111. 443; Lunt v. Stephens, 75 id. 507. 166 Mechanic's- Lien Law. Where the petition agaiast two parties sought a discovery of their interests, and neither answered or filed any defensG, and, in conse- quence, defaults were entered against them, the decree was held not erroneous, because it did not state the respective interests of the parties. If a cloud be thus east upon the title of a party who has neglected to make a discovery of his interest, he must bear the con- sequences of his own laches.^ i § 254. Apportionment. Distribution of proceeds. — The court in its decree must not only settle all interests and priorities, but ap- portion the proceeds of the sale in accordance therewith. Tliis apportionment must be pro rata' after decreeing the payment in full of labor claims.' Before distributing the proceeds of the sale, the court must require proof to be taken and ascertain therefrom, the value of the land prior to the improvements, the value added by the improvements, and as the prior mortgagees have a preferred lien on the land, the mechanics on the improvements, the decree should direct the pay- ment of the proceeds on that basis, that portion arising from the sale of the land, first to the prior mortgagees, if any surplus, then to the mechanics, and per contra as to that portion arising from sale of the improvements* and the surplus, if any, after all is paid, to the owner." Though it be apparent when the sale is ordered that the property will not sell for enough to pay all claims, the court cannot decree otherwise. For instance, in such case it cannot decree the surplus, after payment of the prior mortgagees, to the claimants, or any of them." It may not in the decree direct the disposition of the sur- plus, but reserve that direction for further order.' This requirement which makes it obligatory on the court to dis- tribute the proceeds, does not render it necessary that the decree should determine at first in what proportion such proceeds should be paid. The fund would still remain under the control of the court, and might by a subsequent order be directed to be paid over to the ' Gould V. Garrison, 48 111. ^58. 2 Sec. 15, ac' 1874, as amended; Bucbter v. Dew, 39 111. 40; Tracy v. Rogers, 69 id, 662; Mehrle v. Dunne, 75 id. 339; Lunt v. Stephens, id. 507; Ogle v. Murray, 8 Bradw. 343 3 Sec. 34, act 1874, as amended. •' * Sees. 156-161, ante; N. P. CJiurch v. Jevne, 33 111. 214; Croskey v. N. W. Mfg. Co., 48 id. 481; Dingledine v. Hersbman, 53 id. 280; Grundeis v. Hart well, 90 id. 324; Miller v. Ticknor, 7 Bradw. 393. 5 N. P. Church v. Jevne, 33 111. 214; Woodburn v. Gifford, 66 id. 285; Hickox V. Greenwood, 94 id. 366; Powell v. Rogers, 105 id. 318; adv., 1 Bradw. 631; Phoenix Mut. Life Ins. Co. v. Batchen, 6 id. 621. 6 Phoenix Mut. Life Ins. Co. v. Batchen, 6 Bradw. 631. ' Kelly V. Chapman, 13 111. 5j0. Pleading and Practice. 167 parties as they should show themselves entitled to it.', ' A decree ordering the payment to a mere lien creditor of the entire surplus proceeds after satisfying other lien creditors is erroneous. This sur- plus belongs to the owner. He should be ascertained and it be ordered to be paid over to him. The fact that there was evidence tending to show that the property was not worth enough to satisfy the liens^will not change the rule. What the property will bring at a sale cannot be known judicially, until a sale is made.' So, where there is a subsequent mortgage, the decree should direct that the surplus be paid to the mortgagee, or held subject to further order of the court." Where a decree enforcing a mechanic's lien under which a party to the record has acquired title by purchase, has been reversed and a decree entered foreclosing a prior mortgage on the same property, -and ordering a sale, it is error to direct that the surplus arising from the sale, after the payment of the lien debt and the mortgage debt, he brought into court. Such surplus should be ordered to be paid to the purchaser under a prior sale, to apply upon the improvements made by him upon the premises, when the original owner and debtor makes no defense and claims nothing.' § 255. Yalue of both land and improvements must Ibe found. -- Finding the value of improvements onlj', not of the land is, erron- oous ; that of both must be found. Where F. held a first, G-., a second mortgage, and after both the improvements were made, and the court ordered the property sold, out^of the proceeds to pay, first, the mechanic, then F., then G., the decree was reversed, and it held that the value of both land and improvements should be found, that F. had a first lien on the land, second on the improvements, G., a second lien on the land, third on the improvements, the mechanic a first lien on the improvements and a lien on the land after both F. and G., and in accordance with such priorities the proceeds of the «ale should be apportioned.* Proof as to value of property for apportionment may be taken after sale," but such proof as to the value of the land should be con- fined to its value at the date of the contract regardless of such sale.' §256. Judgment for deficiency only. — There should be no 1 Phoenix Mut. Life Ins. Co. v. Batcheu, 6 Bradw. 631. ' Kelly V. Chapman, 13 111. 530. ' Rogers v. Powell, 1 Bradw. 631; Powell v. Rogers, 105 111. 318. ^ Grundeis v. Hartwell, 90 111. 324; North Pres. Church v. Jevne, 32 id. 214. « Croskey v. N. W. Mfg. Co., 48 III. 481. « Sec. 17, act 1874, as amended. 168 Mechanic's Lien Law. decree for a personal judgment, except for what deficiency maj exist after the sale of the property. In a proceeding by original or sub-claimant to enforce a lien, it is error to order a general execu- tion before the property is sold. That writ is only issuable for the balance that the sale fails to realize,' and must be ordered against- those liable at law for the debt.'' § 257. Rights of sub-sub-claimant iu fund. — The court may adjust the rights of all parties before it,' and though a sub-claimant of a sub-claimant has no lien and cannot maintain action against any other than his employer for his debt, if the fund belonging to his employer be in the hands of the court it may order him paid out of tnat fund, if he be a party and ask such relief.* § 258. Only out of what due original paid suh-contractor. — Where suits are by original and sub-claimants, the decree should direct payment to be made to the sub-claimants out of the amount found due the original contractor up to the limit of such amount.' Where the suit by a sub-contractor is against the owner personally, judgment is enfqrceable only by general execution, not by special execution against the specific improved property." § 259. Yarious tracts in same suit. — If the suit be against dif- ferent tracts, though between the same parties, or where the build- ings are separate and distinct and susceptible to division, the decree should not be in solido, but for the sale of each tract for what was due for labor done, materials furnished on each respectively.' Where the lieu is sought .^gainst several separate buildings, the decree must be against each for the value of the work and materials on it, and not against all for the aggregate value of the work and materials on all." Where there are several houses on several lots, and various claims on each, each house and lot must be sold for what is due on it alone, not one sold for what is due on others beside it ° If the lots are contiguous, and the entire block is compact, forms one building ' Bouton V. McDonougli County, 84 111. 384; First Baptist Churcli of Chicago v. Andrews, 87 id. 173; Green v. Sprague, ISO id. 416; Martin v. Swift, 120 id. 488. As to judgment on stipulation, see Johnson v. Estabrook, 84 id. 75. 2 Race V. Sullivan, 1 Bradw. 94. 8 Henderson v. Connelly, 183 111. 98; 23 App. 601. "Newhall v. Kastens, 70111. 156. 'Schnell v. Clements, 73 111. 613. « Sees. 37-38, act 1874, as amended; First Baptist Church v. Andrews, 87 III. 173; Powell V. Rogers, 105 id. 318. ' Steiglemeu v. McBride, 17 111. 300;(«) Culver v. Elwell, 73 id. 536;W Major v. Collins, 11 Bradw. 658; Van Lone v. Whittemore, 19 id. 447. 8McGraw v. Bayard, 96 111. 146; Bayard v. McGi;aw, 1 Bradw. 134. Pleading and Praptice. 169 under one roof, it is proper to decree the lien against the entire block." If more than one building be on the entire tract of land, the con- tracts be between the same parties, though made and to be completed at different times, the decree may be against the land for both debts, need not be separate for each.* Where one contract was made July 30, 1872, to commence Au- gust 2, 1872, be completed June 1, 1873, the other October 30, 1872, to be completed May 1, 1873, the same parties contracting, the buildings to be on the same tract of land, a decree to ?ell the entire property was held proper.'' § 260. Must not sell improvements without land. — It is im- proper to decree a sale of the house and not of the ground, or to pay a part of the debts,' but not for the owner's interest, instead of the land; nor for the sale of his leasehold interest.' Where the petition alleges that the work was done for the equi- table owner, and the legal owner is made a party, and the court de- cree's a sale, the purchaser gets a good title to the whole property.' The court may direct the sale of the estate of all parties before it having such an interest in the property as is affected by the lien. But it is not compelled to do so. The better practice is not to do so, if the object of the statute — payment of the debt — can be at- tained by decreeing a sale of the interests of those parties only who owe the debt for which the lien attached.' § 261. Must show it against right property. — The decree must show that it is against the right property. If, for instance, the suit be to enforce liens for four houses built on five lots, it must show on what lots they were built.' § 262. Decree for sub-contractor must be against hoth origi- nal contractor and owner, — Tlie decree, where suit is against the owner and original contractor, must be against both, not against the owner alone, and not to render any finding against tiie original contractor in such cases is error.' § 263. Must show materials were bought for property sub- ject to decree. — It must show that the material was bought for ' Orr V N. W. Mut. Life Ins.' Co., 86 111. 360; James v. Hambleton, 43 id. 308; Culver V. EUwell, 73 id. 536. 'St. Louis Nat. Stock Yards v. O'Reilly, 85 111. 546. 3 North Pros. Church v. Jevne, 33 111. 214. ^ Kidder v. Aholtz, 36 111. 478; Reed v. Boyd, 84 id. 66. " Lewis V. Rose, 83 111. 574. * Sees. 31-33, act. 1874, as amended; Kidder v. Aholtz, 36 111. 478. ' Maxwell v. Koeritz, 35 App. 300. 6 Culver V. Elwell, 73 111. 586. 22 ITO Mechanic's Lien Law. the lot against which the lien is decreed.' But where tlie petition showed the defendant owned certain described lots, and the contract which was made part of the petition, showed the plaintiff was to furnish the materials for a house on defendant's lots in the same town, without describing them, and the petition claimed a lien on the lots described ; the answer did not deny such ownership, and the proof showed the building upon the lots of defendant, but did not show he owned any other lots, it was held sufficient to author- ize a decree for the sale of those lots in enforcement of the liens." § 264. Defaults. — If defendants do not answer on or before the day set for trial, default can be properly taken without waiting for second call of the docket, and setting it aside is wholly discretionary with the court ;' and the court may impose such conditions as it sees fit, if it does set it aside ;* it cannot open the decree to allow set- off of other debt not connected with the matter.* Where a discovery of the interest of the parties defendant is sought, and they default, the whole property may be sold.' Where the petition alleges that the house improved or, built is upon a leasehold interest, and the owner of the fee is made a party and defaults, a decree ordering a sale of the house and leasehold in- terest is good." Nor is a rule to plead necessary, before entering default and judg- ment pro confesso, when the defendant is summoned by publication.' If a demurrer is overruled, the court may properly render a decree jyro confesso wKjhont ruling defendant to answer.' A default admits only what the petition properly alleges, and no more. If that petition omits any essential averment, it can be taken advantage of by motion in arrest of judgment, or on appeal. If, for instance, the petition omits to allege that the debt sued for was due and unpaid at the time of filing the same, the decree will be reversed on appeal. Such allegation is indispensable.' And if the petition aver no facts upon which a lien could be predicated, a de- fault will not authorize a decree for a hen." ' Croskey v. Corey, 48 111. 443. 2 Lombard v. Johnson, 76 111. 599. s Thielmann v. Burg, 73 111. 293. * Freibroth v. Mann, 70 111. 523. 5 Gould V. Garrison, 48 111. 258; Van Pelt v. Dunford, 58 id. 145; Fitzhugli v. Smith, 63 id. 486; Topping v. Brown, 63 id. 349. « Reed v. Boyd, 84 111. 66. ■< James v. Hambleton. 42 111. 808. 8 Roach V. Chapin, 27 111. 194. 9 Thielmann v. Burg, 73 111. 293; Cronan v. Frizell, 43 id. 319. '» Seller v. Schaefifer, 40 App. 74. Pleading and Pbacticb. 171 ' § 265. Decree pro confesso is discretionary with court.— A decree pro confesso is, however, discretionary with the court; it may require proof of the matters set forth in the petition. ' "Where exceptions to answer are sustained, and the remainder of the answer presents no material issue, and the defendant makes nd further answer, a decree pro confesso is proper.'' A default cannot be taken where the answer of the mortgagee is on file. Decree in such case is erroneous, and will be reversed ;' nor can a decree be taken agjainst the wife on default where the suit is for a lien on the husband's property.' Pendency of affidavit, and motion thereon for bond for costs, is no excuse for not filing answer; and when not filed in proper time, on account of the pendency thereof, default may be properly taken.' Affidavit for costs is not favored, and the oath of the two parties in regard thereto is held equal.' § 266. Sale must be in accordance with decree.— The officer making the sale under the decree must conform strictly to it as to time, terms of sale, mode of advertising, and interest of the party to be sold." If the sale is not made in pursuance of the decree, the court may set it aside and order another sale. The sale may be by special execution directed to the sheriff or a master.' § 267. Sale to party to record set aside on reversal of decree. — Title acquired by sale under an erroneous decree is divested by a reversal thereof, unless the property is bought by a stranger without notice, and the court may vacate its decretal sale as long.as the property is held by a party to the proceedings.' But the sale cannot be set aside where the purchaser is one not a party to the record. The stranger to the proceedings wlio buys at a judi- cial sale is protected, if the court having jurisdiction orders the sale, whatever irregularities may exist in those proceedings.' The court has jurisdiction to set aside a sale as long as the title continues in the parties to the proceedings. Being set aside, any claim may be contested de novo.'" 1 Thielmann v. Burg, 73 111. 393: Cronan v. Frizell, 43 id. 319. « Work V. Hall. 79 111. 196. ^ Younger v. Louks, 7 Bradw. 380. ■• Gove V. Gather, 33 111. 634. « Hamilton v. Dunn, 22 111. 359. < Gould V. Garrison, 48 111. 258. •I Kelly V. Chapman, 13 111. 530; Lubliner v. Teomans, 65 id. 305. « Powell V. Rogers, 105 111. 318. ' Dingledine v. Hershman, 53 111. 880; Topping v. Brown, 63 id. 349. ■« Clark V. Moore, 64 111. 378. 173 Mechanic's Lien Law. § 268. When court may set decree aside. — The court may set aside its decree to enforce a superior or equal lieu,' but after a decree cannot incorporate evidence not heard or offered on the hearing." It is improper for a court on its own motion to set aside a decree of a former term.' An amendment to a petition and a decree thereon after a trial of a mechanic's lien suit, nunc pro tunp, without notice, is improper. The probability of it working injustice is sufficient to secure a reversal.* § 269. When hound hy erroneous decree. — The party who procures a decree is bound by its terms, where he allows others to act on the faith of it. Where, a grantor reserved a lien for purchase money and the decree ordered the property sold subject thereto, and the notes of the vendor were purchased on the faith of such decree giving them a prior lien to the mechanic's lien, it was held the mechanic could not take advantage of the error in his own decree.' Where after finding the value of the land and the improvements and decreeing the property to be sold it was ordered that the prior mortgage be paid first out of the proceeds, and the mechanic's lien claimants allowed the property to be sold as the decree ordered, it was held, that after the making of such sale it was too late to object to such order of payment. The only relief in such case would be to order a resale of the property. In this case, a stranger having purchased, it was held neither a resale could be ordered, nor could the prior mortgagees so paid be compelled to refund any por- tion of wliat was paid them, as they had bid in the property on the faith of that decree." § 270. Costs. — The statute controls the matter of costs, ' and the rule regarding costs in chancery does not apply in lien cases.' By the statute, as between original parties, creditors claiming liens, and the person against whom the lien is intended to be enforced, the costs abide the event of the suit, and must be adjudged in favor of the successful party ; and the costs as between the creditors afore- said, in contests relative to each other's claims, shall be subject to the order of the court, and the same rule prevails in respect to costs growing out of proceedings against and between incumbrances.' ' Clark V. Moore, 64 111. 373. ~* 2 L. S. & M. S. R. R. V. McMillan, 84 111. 208. 3 Bush V. ConDelly, 33 111. 447. ^ Littlefield v. Schmoldt, 34 App. 634. " Wood V. Rawlings, 76 111. 306. ' Dingledine v. Hershman, 53 111. 280. ' Sec. 27, act 1874, as amended; Kipp v. Massin, IS Bradw. 800. Pleading and Pbactice. 1|?3 Where an abstract of testimony was ordered on afjpeal, and instead of such abstract the testimony in fall was given, the costs of print- ing the same were not allowed for, but compelled to be borne by him who incurred it." Where the amount of the judgment was reduced on appeal and other, wise the case affirmed, each party was rec[uired to pay half the costs.' § 271. Bill of review. Writ of error. — A bill of review may be brought for error on the face of the decree, or for new matter discovered since the decree, and that could not fairly have been used when the decree was rendered. This bill must give a copy of the entire record, except the evidence." Upon a petition to enforce a mechanic's lieu, to which pt-ior incumbrancers by mortgage were made parties, the decree found the value of the premises before the erection of the improvements, and their value with the improve- medts, for the making of which the mechanic's lien accrued, and then declared the rule of distribution so that the prior mortgages should first be paid out -of the proceeds of a sale of the premises, to the extent of their value without the improvements, and upon a sale being made the proceeds of the sale were- distributed according to the rule thus declared. Upon a bill of review afterward filed by those claiming the mechanic's lien, alleging there was error in that decree in regard to the rule of distribution, it was heldj even though there was error in that respect, it could not, equitably, be corrected upon a bill of review so as to compel the prior incumbrancers to re- fund any portion of what they had received, because the sale under the decree being allowed to stand, they would have no opportunity under a different rule of distribution limiting their proportion of the proceeds of the sale, to protect their interests by making the prop- erty bring a higher price. The only equitable mode of correcting such error in the original decree, if one existed, would be to set aside the sale and order a resale.* While a decree dismissing a bill of review to impeach a decree for error upon the face of the proceedings, might be pleaded in bar of a writ of error to reverse the same decree, yet if it is not so pleaded, and the original decree is reversed and the cause remanded, the decree on the bill of review cannot be held any bar in the origi- nal case, or to a proper distribution of the money arising from a sale of the premises among the sevteral creditors having liens.' 1 Kelly V. Kellogg, 79 111. 477. = Wolife V. Stone, 30 111. 174. = JudaoQ V. Stephens, 75 111. 255. ■> Judson V. Stejihens, 75 111. 355; Moofe v. Bracken, 37 id. 23. " Powell V. Rogers, 105 111. 318; adv., 1 Bradw. 631. 174 Mechanic's Lien Law. The doctrine of res adjudlcdi-a embraces not only what has been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it. Therefore, a decree on the merits is conclusive as to all de- fenses that might have been interposed.' The conclusive effect of a former adjudication sometimes applies to persons not parties to the record, and who have not acquired rights pendente lite. Persons on whose behalf and under whose direction a snit is prosecuted or defended in the name of some one else, will be equally concluded by the judgment or decree in such suit, and parol evidence may he introduced to show that such party is bound by the decree, that he Conducted or managed the case, em- ployed counsel, etc.^ As bills of review and writs of errors are governed in cases under this statute by the rules of general practice, their further presenta- tion is needless in this treatise. § 272. Appeals. — The rules and practice -in appeals are the same in cases arising under this law as in those taken in other civil actions^ except that the rule in chancery that the record must show on its face the facts necessary to support the decree does not apply in lien cases.' It is the duty of the party who complains of the verdict or decree to preserve the evidence in the records, either' by bill of exception, certificate of the judge, or other approved manner.' Where the evidence is not preserved the decree is presumed to be correct.* Appeals can be taken only on errors affecting the party appealing. Our courts have held that it hasbeen so repeatedly decided that a party cannot complain of error that does not affect him, that cita- tion of authority is unnecessary.* Where a party submits to a trial in a case arising under one section, as section 37, he cannot raise the point above that the ease should have been tried under the provisions of another section, as section ^5." § 273. Original contractor may appeal from lien decree. — The original contractor has a right to appeal from a decree establish, ino-'the lien of a sub-contractor and is really the party in interest." > Powell V. Eogers, 105 111. 318: adv., 1 Bradw. 631. "■ Bennitt v. Star Mining Co., 119 111. 9; 18 App. 17. ' Kelly V Chapman, 13 111. 580; Ross v. Derr, 18 id. 245; Drennan v. Huskey, 31 App 208: Kidder v. Alioltz, 36 111. 478; Croskey v. N. W. Mfg. Co., 48 id. 481; Jennings v. Hinkle. 81 id. 183; Lewis v. Rose, 82 id. 574. * McGraw v. Storke. 44 App. 311. 5 Conklin v. Plant, 34 App. 264. 6 Swift V Martin, 20 Bradw. 515; Martin v. Swift, 120 III. 488. Pleading and Peactiob. 175 § 274. Defective pleadings aided by verdict. —A petition which fails to aver when work was to be completed and money to be paid is bad on demurrer, but if answer is put in and the case tried, and the proof shows that the time for completion and payment was within the statutory period, it is too late to raise the objection on appeal.' , Where the statements in a pleading, although imperfect and in- sufficient in themselves, are yet of such a character as to lead the court to believe that all must have been proved on the trial tliat should have been stated in the pleadings to procure the verdict, then the defective pleading is aided by intendment after verdict, and the court may render judgment. A verdict will aid a defective state- ment of title, right or cause of action, but cannot make good a defective right or cause of action. This implication is never raised,, except wliere tliere is a verdict, can never aid defective pleading where there is a judgment by default.' A motion based on the fact that the petition did not contain sufficient averments to constitute a cause of action, that the time for performance was not within the time limited by the statute, and in arrest of judgment, was overruled on appeal after a verdict on answer and trial had been rendered.* § 275. Want of proper parties will reverse decree. — Where it appears there were other persons entitled to liens who were not. made parties for this reason alone, the decree will be reversed.' § 276. Yariance must toe objected to in trial court. — Wliere a bill is erroneously dismissed upon the merits of the case, the decree will not be sustained above on the ground of variance between the allegations and the evidence, when no objection to such variance was made in the court below. Unless judgment is upon default, the objection to variance must be made in the trial court to be availed of above.* § 277. Powers of upper court. — The upper court can review the evidence, reform the verdict and amend the decree; and where against the weight of the evidence, that court may either correct, reform or reverse.' 1 Brown v. Lowell, 79 111. 484. « Warren v. Harris, 3 Gilm. SO?;'") Heiman v. Schroeder, 74 111. 158; Morri.sou V. Stewart. 24 id. 34. sMehrle v. Dunne, 75 111. 339; Radcliff v. Noyes, 43 id. 318; Race v. Sullivan, 1 App. 94. "Driver v. Ford, 90 111. 595. 6 Wolf V. Stone, 30 111. 174; Mbbe v. Brauhn, 24 id. 368; Moore v. Bracken, 37 id. 33; Lubliner v. Yoemans, 65 id. 305; Adams v. Russell, 85 id. 64; Jacoby v. Scougale, 36 App. 46; Koeritz v. Neimes, id. 568; Albrecht v. Kraisinger, 44 id. 313. 176 .' Mechajtic's Lien Law. But the record of the lower court cannot be altered, amended or in anywise changed in the upper court. Where the decree or judg- ment is for more than claimed in the petition, or for too latge a sum, remittur cannot be allowed in the npper court to rectify the error ; tlie case must be reversed.' 1 —— ' Beese v. Becker, 51 111. 83. * APPENDIX. THE MECHANIC'S LIEN LAW OF THE STATE OF ILLINOIS. Aet of 1874, as Amended and in Force March 1, 1894. CHAPTER 83 OF THE REVISED STATUTES OF ILLINOIS. ■Section 1. Original contractors, to whom and when lien is given. Areji. covered by lien. 2. To what estates and interests liens of original and sub-contractors extend. 3. Time for completion after commencing performance of contract; classes of contracts; time for payment. 4. Claim for lien by original contractor; requisites thereof; when, how, and in what court he can bring suit. 5. Pleading; requisites of bill or petition. 6. Summons; how served. 7. Publication; service of process on non-resident, etc. 8. Docket, trial. 9. Practice; powers of court. 10. Practice; answer; replication ; trial. 11. Breach of contract by owner; recovery for partial performance; quantum mervit. 13. Persons interested; how and when made, or may become, parties; new parties. 13. Who are parties in interest. > 14. No preference to first contractor. 15. Proceeds of sale; application of pro rata. 16. Claims not due. 17. Incumbrances; apportionment. 18. Adverse claimants: issues between. 19. Fraudulent incumbrances; disposition of . 20. Trials; parties ready not to be delayed; decrees; sales. 31. What estate to be sold; disposition of proceeds. 23 178 Mechanic's Lien Law. Section 33. When part may be sold. 33. Manner of making sale. 34. Kedemption. 35. Deficiency of proceeds of sale; execution in case of; excess, to whom paid. 36. Representatives; death of parties in interest. 27. Costs. 28. Limitation as to filing claim of original contractor. As to suit after filing. Sub-Contractors. 39. Liens of sub-contractors, mechanics, workman, etc. Limits thereof ; limit of owner's liability; exception. 30. Notice to owner by sub-contractor, form of; excuse of. 31. Notice to owner; copy of sub-contract to be attached. Limitation for service of; clerk's fees. 33. Notice to non-resident; publication of; posting of. 33. Lien limited to amount owner owes contractor at date notice served; exception in favor of laborer; limitation as to laborer's notice. 34. Owner's privilege to retain and pay money after notice; preference to laborers. 35. Contractor to make statement to owner; requisites for and of state- ment; sub-contractor to make statement to contractor; requisites; penalty for failure of either. 36. Repealed; amendment, June 16, 1887. 37. Suit to enforce lieu by subcontractor; when can be brought; how; action at law by against owner and contractor. 38. Judgment before justice of the peace; when transcript of may be filed; execution thereon. 89. Proceedings for general settlement; interpleader. 40. How liens and claims cut off in such p'roceedings. 41. How judgment on lien.s stayed in such proceedings. 42. 43, 44 repealed. Amendment, Juue 16, 1887. 45. Failure to complete contract by original contractor; requisites anc manner of sub-contractor's suit in case of; owner's liability ir case of. 46. Payments of owner to original contractor ; when wrongful. 47. Limitation as to suit of sub-contractor to enforce lien. 48. 49, 50. Liens of others not mechanics. 51. Repeal of previous acts, etc.; see act 1874, Appendix, page 52. Suit to be commenced by lier( claimant within thirty days on de mand of owner, or interested party . 53. Circuit Court clerk's duties with regard to claims for lien filed abstract; fee. 54. Neglect to satisfy lien paid; penalty. 48. Hotels, inns, boarding-houses; lien of. 49. Stable-keepers and others; lien for keep of horses, carriages am harness. 50. Agisters and keepers of domestic animals; lien of. Appendix. 179 Section 1. Original contractors, to whom and when lien is given ; area covered by lien.— ^e it enacted hy the People of the State of Illinois, represented in the General Assembly, That any person wlio shall, by contract, express or implied, or partly expressed or partly implied, with the owner of any lot or piece of land, fur- nish labor or materials, or services as an architect, or superintend- ent, in building, altering, repairing or ornamenting any house or other building or appurtenance thereto on such lot, or upon any street or alley, and connected with such building or appurtenance, shall have a lien upon the whole of such tract of land or lot, and upon such house or building and appurtenance, for the amount due to him for such labor, material or service. (Section 1, act 1845, page 214; section 1, amendment February 18,1861, ex- tended to implied cpntracts, page 218; act February 14, 1863, improvements be- yond lot line, page 219; compare sections 1, acts 1825, page 205; 1833, pages 205-6.) § 2. To what estates and interests liens of original and sub- contractors extend. — The lien provided for in sections 1 and 29 of this act shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption, or other interest, which such owner may have in the lot or land at the time of making the contract. (Section 17, act 1845, page Slfi.) § 3. Time for completion after commencing performance of contract; classes of contracts; time for payment. — When the contract is expressed, no lien shall be created under this act, if the time stipulated for the completion of the work or furnishing mate- rials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof. If the work is done or materials are furnished under an implied contract, no lien shall be had by virtue of this act, unless the work shall be done or materials be furnished within one year from the commencement of the work or delivery of the materials. (Section 3, act 1845, page 214; section 1, amendment February 18, 1861, page 218.) § 4. Claim for lien hy original contractor ; requisites there- of; when, how, and in what court he can bring suit. — Every creditor or contractor who wishes to avail himself of the provisions of this act shall file with the clerk of the Circuit Court of the 180 Mechan-ic's Lien Law. county in which the building, erection, or other improvement to be charged with the lien is situated, a jnst and true statement or account or demand due him, after allowing all credits, setting forth the time when such material was furnished or labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit. Any person having filed a claim for a lien, as provided in this section, may bring a suit at once to enforce the same by bill or petition in any court of competent jurisdiction in the county where the claim for a lien has been filed. (Amendment, May 31, 1887. In force July 1, 1887, page 236; sections 3, 4, act 1845, page 314; see sections 38, page 184; 53, page 190.) § 5. Pleading ; requisites of bill or petition. — The bill or petition shall contain a brief statement of the contract on which it is founded, if expressed, or if the work is done or piaterials are furnished under an implied contract, the l)ill or petition shall so state, and shall show the amount due and unpaid, a description of the premises which are subject to the lien, and such other facts as may be necessary to a full understanding of the rights of the parties. (Section 4, act 1845, page 314.) § 6. Summons ; liow served. — Upon the filing of such bill or petition, summons shall issue and service thereof be had, as in suits in chancery. (Sections 4, 6, act 1845, page 214; Revised Statutes of Illinois, section 8, chap. 23.) § 7. Publication ; service of process on non-resident, etc. — "When any defendant resides or has gone out of the State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, the complainant or petitioner may cause notice to be given to him in like manner and upon the same conditions as provided in suits in chancery. (Section 9, act 1845, page 315; Revised Statutes of Illinois, section 13, chap. 22.) §8. Docket; trial. — Suits instituted under the provisions of this act shall be placed upon the chancery docket, and stand for trial as other suits in chancery. (Section 6, act 1845, page 214.) § 9. Practice ; powers of court. — For the purpose of bringing all parties in interest before the court, the court shall permit amend- ments to any part of the pleadings, and may issue process, make all Appendix. 181 orders requiring parties to appear, and requiring notice to be given, that are or may be authorized in proceedings in chancer}', and shall have the same power and jurisdiction of the parties and subject, and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is otherwise, provided in this act. (Section 5, act 1845, page 214.) § 10. Practice ; answer ; replication ; trial. — Defendants shall answer the bill or petition under oath, unless tlie oath is waived by the complainant or petitioner, and the plaintiff shall except or reply to the answer as though the proceeding was in chancery. . The answer shall be regarded as the plea of the defendant, and by repli- cation thereto an issue or issues shall be formed, which shall be tried by the court, or by a jury under the direction of the court, as the court may direct or the parties agree. ' (Section 7, act 1845, page 215.) § 11. Breach of contract by owner; recovery for partial performance ; quantum meruit. — When the owner of the land shall have failed tp perform his part of the contract by failing to advance to the contractor moneys justly due him under the con- tract at the time when the same should have been paid to the contractor, or has failed to perform his part of the contract in any other nianner, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable compensation for as much thereof as has been performed in proportion to the price stipulated for the whole, and the court shall adjust his claim and allow him a lien accordingly. (Amendment June 23, 1891. In force July 1, 1891, page 241; section 13, act 1845, page 215.) § 12. Persons interested ; liow and when made, or may be- come parties; new parties. — In proceedings under this act, all persons interested in the subject-matter of the suit, or in the prem- ises intended to be sold, may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment. (Section 10, act 1845, page 315.) § 13. Who are parties in interest. — Parties in interest, within the meaning of this act, shall include all persons who may have any 182 Mechan'ic's Lien Law. legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the pro- visions of this act. (Section 31, act 1845, page 217.) § 14. No preference to first contractor. — Upon questions aris- ing between different creditor^ having liens under this act, no preference shall be given to him whose contract was first made. (Section 11, act 1845, page 215.) § 15. Proceeds of sale ; application of pro rata. — The court shall ascertain the amount due each creditor, and shall direct the application of the proceeds of sales to be made to each in proportion* to their several amounts. (Section 12, act 1845, page 215.) § 16. Claims not due, etc. — Parties entitled to liens under this act, whose claims are not due or payable at the time of the com- mencement of suit by any other party, shall be permitted to become parties to the suit, and their claim shall be allowed, subject to a reduction of interest from the date of judgment to the time such claim is due or payable. (Section 15, act 1845, page 215.) § 11. Incumbrances ; apportionment. — No incumbrance upon land, created before or after the making of the contract under the provisions of this act, shall operate upon the building erected or materials furnished, until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied ; and upon questions arising between previous incumbrances and creditors, the previous incumbrance shall be preferred to the extent of the value of the land at the time of making the contract, and the court shall ascertain, by jury or otherwise, as the case may require, what propor- tion of the proceeds of any sale shall be paid to the several parties in interest. (Section 20, act 1845, page 217.) §18. Adverse claimants; issues between. — Parties claiming may contest each other's rights, as well with respect to amount due, as with respect to their right to the benefit of the lien hereby cre- ated ; and upon all questions made by parties, the court shall require issues of law or fact to be formed so as to bring about a speedy de- cision thereof. (Section 19, act 1845, page 216.) Appendix. 183 §19. Fraudulent incumbrances ; disposition of.— Any incum- brance, wliether by mortgage, judgment or otherwise, charged and shown to be fraudulent in respect to creditors, may be set aside by the court, and the premises made subject to the claim of the com- plainant or petitioner, freed and discharged from such fraudulent incumbrance. (Section 32, act 1845, page 317.) § 20. Trials ; parties ready not to be delayed ; decrees ; sales. — In no case shall the want of preparation for trial of one claim de- lay the trial in respect to others, but trial shall be had upon issues between such parties as are prepared, without reference to issues be- tween other parties ; and when one creditor shall have obtained a decree or judgment for the amount due, the court may order a sale of the premises on which the lien operates, or a part thereof, so as to satisfy the judgment: Provided, that the court may, for good cause shown, delay making any order of sale or distribution until the rights of all parties in interest are ascertained and settled by. the €OTirt. (Section 16, act 1845, page 316.) § 21. What estate to be sold ; disposition of proceeds. — What- ever right or estate such owner had in the land at the time of mak- ing the contract, may be sold, and the proceeds of sale applied according to the provisions of this act. (Sectiop 17, act 1845, page 316.) § 22. When part may be sold. — If any part of the premises can be separated from the residue, and sold without damage to the whole, and if the value thereof is sufficient to satisfy all the claims proved in the cause, the court may order a sale of that part. (Section 14, act 1845, page 215.) § 23. Manner of making sale. — The sale shall be made in the «ame manner as other sales of real estate under decrees in chancery. (Revised Statutes of Illinois, section 48, chap. 32; section 16, chap. 77.) § 24. Redemption. — Upon all sales under this act, the right of redemption shall exist in favor of the same persons, and may be made in the same manner as is or may be provided for redemption of real estate from sales under judgments and executions at com- mon law. (Section 1, act March 30, 1869, page 334; Revised Statutes of Illinois, chap. 77, sections 18-37.) 184 Meceastic's Lien Law. § 25. Deficiency of proceeds of sale; execution in case of; excess, to whom paid. — If, upon making sale of any premises under this act, the proceeds of such sale shall not be sufficient to pay the claims of all parties, according to their rights, the judg- ment shall be credited by tlie amount of such sale, and execution may issue in favor of any creditor whose claim is not satisfied, for the balance due, as upon a judgment in actions of debt or assumpsit, 'and in case of excess of sales over the amoxmt of judgment, such excess shall be paid to the owner of the land, or to the person who may be entitled to the same, under the direction of the court. (Section 26, act 1845, page 317.) ' § 26. Personal representatires ; death of parties in interest. — Suits may be instituted under the provisions of this act, in favor of administrators or executors, and may be maintained against the rep- resentatives in interest of those against whom the cause of action accrued; and in suits instituted under the provisions of this act,, the representatives of any party who may die pending the suit, shall be made parties. (Section 18. act 1845, page 216.) § 27. Costs. — The cost of proceeding, as between creditors claim- ing liens and the person against whom the lien is intended to be en- forced, shall abide the event of the suit ; and tlie costs, as between creditors aforesaid, in contests relative to each other's claim, shall be subject to the order of the court, and the' same rule shall prevail in respect to costs growing out of proceedings against and between incumbrances. (Section 27, act 1845, page 318.) § 28. Limitation as to filing claim of original contractor y as to suit after filing. — No creditor shall be allowed to enforce a lien created under tlie provisions of this act as against or to the pre'- judice of any other creditor, or incumbrancer or purchaser, unless a claim for a lien shall have been filed witii the cleric of the Circuit Court, as provided in section four of this act, within four months after the last payment shall have become due and payable. Suit shall be commenced within two years after filing such claim witb the clerk of the Circnit Court, or the lien shall be vacated. (In force July 1, 1887; amendment May 31. 1887, page 336; prior act, 1879, page 336; section 34, act 1845, page 317.) Appendix. 185 Stjb-Conteactoes. § 29. Liens of sub-contractors, mechanics, workman, etc.; limits thereof ; limit of owner's liability ; exception. — Every sub-contracJt.or, raechahic, workmap, or other person, who shall hereafter, in purauance of the purposes of the original contract between the owner of any lot or piece of ground, or his agent and the original contractor, perform any labor or furnish any materials in building, altering, repaiuing, beautifying or ornamenting any house or other building or appurtenance thereto, on such lot or on any street or alley, and connected with such building or appurte- nance, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot or land upon which the same stands, to the extent of the right, title and interest of such owner at the time of making the original con- tract for such house or the improvement ; but the aggregate of all the liens hereby authorised shall not exceed the price stipulated in the original contract between such owner and the original contractor for such improvements. In no case shall the owner be compelled to pay a greater sum for or on account of such house, building or other improvements than the price or sum stipulated in said original contract or agreement, unless payments be made to the original con- tractor, or to his order, in violation of the rights and interests of the persons intended to be benefited by section thirty -five of this act : Provided, if it shall appear to the court that the owner and cpn- tractor fraudulently, and for the purpose of defrauding sub- contractors, fixed an unreasonably low price in their original contract for the erection or repairing of such building, then the court shall ascertain how much of a difEerence exists between a fair price for the labor and materials used in said building or other improvements and the sura named in said original contract. Said difference shall be considered a part of the contract and be subject to a lien, but in no case shall the original contractor's time or profits be secured by this lien, only so far as the sum named in the original contract or agreetnent. (Amendment Jane 16, 1887, page 338; prior, section 1, act 1863, page 319; sec- tion 1, act 1869, page 334.) § 30. Notice to owner by sub-contractor ; form of; excuse of. — The person performing such labor, or furnishing such materials, shall cause a notice, in writing, to be served on such owner or his agent, substantially in the following form : 24 186 Mechanic's Lien Law. To : You are hereby notified that I have been em- ployed by to (here state whether to labor or furnish material, and substantially the nature of the undertaking or demand) upon your (here state the building and where situated, , in general terms), and that I shall hold the (building or, as the case may be), and your interest in the grounds liable for the amount that (is or may be- >conie) due me on account thereof. Date. Signature. Provided, Such notice shall not be necessary where the sworn statement of the contractor provided for in section thirty-five of this act shall serve to give the owner true notice of the amount due, and to whom due. (In force July 1, 1887; amendment June 16, 1887, page 238; prior, act 1869, sec- tion 2, page 235 .) ■ § 31. Notice to owner ; copy of sub-contract to be attached ; limitation for services of ; clerk's fees. — If there is a contract in writing between the original contractor and the sub-contractor, a <3opy of such sub-contract, if the same can be obtained, shall be served with such notice and attached thereto, which notice shall be served within forty days from the completion of such sub-contract, or within forty days after payment should have been made to the person performing such labor or furnishing such material. (Section 2, act 1869, page 225.) § 32. Notice to non-resident owner ; clerk's fees ; publication •of; posting of. — In all cases where the owner cannot be found in the county in which said improvement is made, or shall not reside therein, the person furnishing labor or materials shall file said notice in the ofiice of the clerk of the circuit court, who shall enter, in a book to be kept for that purpose, alphabetically, the names of the owners, and opposite thereto the names of the persons claiming liens, for which the clerk shall receive a fee of fifty cents. A copy of said notice shall be published in some newspaper printed in said county, for four successive weeks after filing such notice with the clerk as aforesaid. If, however, there is no paper published in said county, then the claimant of the lien shall post notices in four of the most public places in the vicinity of said improvement. (Section 3, act 1869, page 325.) § 33. Lien limited to amount due or to become due contractor at date notice served ; exception in favor of laborer ; limita- tions as to laborer's notice. — No claim of any sub-contractor, me- Appendix. 187 chanic, workman or other person, shall be a hen under section twenty-nine of this act, except so far as the owner may be indebted to the contractor at the time of giving such notice, as aforesaid, of such claim, or may become indebted afterward to him as such con- tractor : Provided, however, the claim of any person for mechanical or other labor, under section twenty-nine of this act, shall be a lien for twenty days from the last day's work performed by such person, to an amount equal to ten per cent of the proportionate value of the contract completed up to tliedate of said last day's work; Provided, such notice is served within twenty days from the day when such last day's work was performed by such person serving such notice, and the owner or his agent may retain for said twenty days such ten per cent out of any money due to or to become due the con- tractor: And provided further, this ten per cent shall not be construed as in addition to any per cent that may be held back in pursuance of the terms of the contract between the owner and the original contractor. (In force July 1, 1891; amendment 1891, page 241.) § 34. Owner's privilege to retain and pay money after notice ; preference to laborers. — When the owner or his agent is notified as aforesaid he may retaiii from any money due or to become due the original contractor an amount sufficient to pay all demands that are or will become due such sub-contractor, mechanic, workman, or other person so notifying him, and may pay over the same to the persons entitled thereto. In case the amount due the original con- tractor and the ten per cent in section thirty-three provided, is not suf- ficient to pay such persons so entitled in full, he shall first pay all claims for mechanical and other labor in full, if the amount due the con- tractor and the said ten per cent is sufficient, if not, then pro rata, but if more than sufficient, the balance shall be divided and paid to such other persons, pro rata, in proportion to the amounts due them respectively at the time of such payment. All payments so made shall, as between such owner and contractor, be considered the same as if paid to such original contractor. (In force July 1, 1891; amendment of 1891, page 343; section 35, amendment 1887, page 339.) § 35. Contractor to make statement to owner ; requisites for and of statement ; sub-contractor to make statement to con- tractor ; requisites ; penalty for failure of either. — The origi- nal contractor shall, as often as requested in writing by the owner, lessee, or his agent, make out and give to such owner, lessee, or his 188 Meohastic's Lien Law. agent, a statement of the number of persons in his employ, and of the 8u!)-contractors, or other persons, furnishing labor or material^ giving their names, and how much, if any thing, is due or to become due to each of them for work done or material furnished, which statement shall be made under oath, if required of him by such owner, lessee, or agent, in which case the sub contractor shall, as often as requested in writing bj the contractor or his agent, make out and give to the contractor a statement of the number of persons in his employ, or sub-contractors or other persons furnishing material^ giving their names and how mucli, if any thing, is due to each of them, which statement shall be made under oath, if required by such contractor ; and, if any contractor or sub-contractor shall fail to fur- nish such statement within five days after demand, made as afore- said, he shall forfeit to such owner or contractor the sum of $50 for every offense, which may be recovered in an action of debt be- fore a justice of the peace. (In force July 1, 1891. Amendment 1891, page 241; compare amendment 1887, section 35, page 339.) § 36. Repealed. (Amendment, June 16, 1887, page 340.) §37. Suit to enforce lien by sub-contractor; when can be brought ; how; action at law by against owner and contractor. — If the money due to the person giving such notice shall not be paid within ten days after service thereof, as aforesaid, or within ten days after the money shall become due and payable, and any money shall then be due from such owner to the original contractor, then such person may tile his petitition and enforce his lien, in the same manner as is hereinbefore provided in case of original con- tractors, or he may sue the owner and contractor jointly fpr the amount due him, in .any court having jurisdiction of the amount claimed to be due, and a personal judgment may be rendered thereiii as in other cases. (Section 5, act 1869, page 226.) § 38. Judgment before .justice of the peace ; when transcript of may be filed ; execution thereon. — If execution issued on a judgment obtained before a justice of the peace shall be returned not satisfied, a transcript of such judgment may be taken to the Circuit Court and spread upon the records thereof, and execution issued thereon as in other cases. (Revised Statutes of Illinois, sections 95, 97, chap. 79 ; act 1869, section 5, page 326.) Appendix. 189 § 39. Proceedings for general settlement ; interpleader. — K there are several liens, under section twenty-nine, upon the same premises, and the owner, or any person having such lien, siiall fear that there is not a sufficient amount coming to the contractor to pay all of such liens, such owner, or any one or more persons having such lien, may file his or their sworn bill or petition in the Circuit Court of the proper county, stating such fact, and such other facts as may be sufficient to a full understanding of the rights of the par- ties. The contractor and all persons having liens upon, or vrlio are interested in the premises, so far as the same are known to or can be ascertained by the claimant or petitioner, upon diligent inquiry, shall be made parties. Upon the hearing, the court shall find the amount coming from the owner to the contractor, and the amount due to each of the persons having liens ; and in case the amount found to be coming to the contractor shall be insufficient to discharge all the liens in full, the amount so found in favor of the contractor shall be divided between the persons entitled to such liens pro rata, in proportion to the amounts so found to be due them, respectively. If the amount so found to be coming to the contractor shall be suf- ficient to pay stich liens in full, the same shall, be so ordered. The premises may be decreed to be sold for the payment of such liens as in other cases. § 40. How liens and claims cut off in such proceedings. — All persons who shall be duly notided of such proceeding, and who shall fail to prove their claims, whether the same, be in judgment against the owner or not, shall forever lose the benefit of and be precluded from their liens and all claims against the owner. § 41. How judgment on liens stayed in such proceedings. — Upon the, filing of such bill or petition, the court may, on the mo- tion of any person interested, stay any further proceedings upon any judgment against the owner on account of such lien. (Sections 42, 43, 44, repealed; amendment June 16, 1887, page 340.) § 45. Failure to complete contract by original contractor ; requisites and manner of sub-contractor's suit in case of; owner's liability in case of. — Should the original contractor, for any cause, fail to complete his contract, any person entitled to a lien as aforesaid may file his petition in any court of record, against the owner and contractor, setting forth the nature of his claim, the amount due, as near as may be, and the names of the parties em- ployed on such house or other improvements subject to liens ; and 190 Mechanic's Liek Law. notice of such suit shall be served on the persons therein named ; and such as shall appear shall have their claims adjudicated, and de- cree shall be entered against the owner and original contractor for so much as the work and materials shall be shown to be reasonably worth according to the original contract price, first deducting so much as shall have been rightfully paid on said original contract by the owner, and damages, -if any, that may be found to be occasioned the owner by reason of the non-fulfillment of the original contract ; the balance to be divided between such claimants in proportion to their respective interests, to be ascertained by the court. The premises may be sold as in other cases under this act. (Section 7, amendment 1869, page 336.) § 46. Payments of owner to original contractor; when wrong- ful. — No payments to the original contractor or to his order shall be regarded as rightfully made, if made in violation of the rights and interests of the persons intended to be benefited by this act. (Amendment April 5, 1869, section 8, page 336.) § 47. Limitation as to suit of sub-contractor to enforce lien» — JS"o petition shall be filed or suit commenced to enforce the lien created by section twenty-nine, unless the same is commenced within three months from the time of the performance of the sub-contract, or doing the work or furnishing materials, as aforesaid : Provided^ if any delay in filing such petition or commencing suit is caused in consequence of the amount not being due the original contractor, the time of such delay shall not be reckoned. (Amendment April 5, 1869, section 9, page 336.) §§ 48, 49, 50. Liens of others not mechanics. § 51. Repeal of previous acts, etc. (See act 1874, page 335.) § 52. Suit to be commenced by lien claimant within thirty days, on demand of owner or interested party. — Upon the writ- ten demand of the owner or his agent, or any person interested in. the real estate, served on the person or his agent claiming the lien,. ' requiring suit to be commenced to enforce the lien, suit shall be commenced within thirty days thereafter, or the lien shall be for- feited. (Amendment May 31, 1887. In force July 1, 1887, page 387.) § 53. Circuit Court clerk's duties with regard to claims for lien filed ; abstract ; fee. — The clerk of the Circuit Court where Appendix. 191 such lien shall be filed shall indorse on every such claim for a lien filed, the date of filing, and make an abstract thereof in a book kept for that purpose and properly indexed, containing the name of the person filing the lien, the amount of the lien, the date of filing, the name of the person against whom the lien is filed, and a descrip- tion of the property charged with the lien, and for which the person fifing the lien shall pay one dollar to the clerk. (Amendment May 31, 1887. In force July 1, 1887, page 237.) § 54. Neglect to satisfy lien paid ; penalty.— Whenever a lien has been claimed by filing the same with the clerk of the Circuit Court, and is afterward paid, the person filing the same shall acknowledge satisfaction thereof in the proper book in such office in writing, and on neglect to do so for ten days after the claim has been paid, he shall forfeit to the owner the sum of twenty-five dollars. (Amendment May 31, 1887. In force July 1, 1887, page 238.) § 48. Hotels, inns, boarding-houses ; lien of.— Hotel, inn and boarding-house keepers shall have a lien upon the baggage and other valuables of their guests or boarders brought into such hotel, inn or boarding-house by such guests or boarders, for the proper charges due from such guests or boarders for their accommodations, boarding and lodgings, and such extras as are furnished at their request. § 49. Stable-keepers and others ; lien for keep of horses, car- riages and harness. — Stable-keepers and any persons shall have a lien upon the horses, carriages and harness kept by them for the proper charges due for the keeping thereof and expenses bestowed thereon at the request of the owner, or person having the possession thereof. § 50. Agisters and keepers of domestic animals ; lien of. — Agisters and persons keeping, yarding, feeding or pasturing domestic animals shall have a lieu upon the animals agistered, kept, yarded or fed, for the proper charges due for the agistering, keeping, yard- ing or feeding thereof. WAGES OF EMPIOTEES. An Act to Pkoteot Employees and Laborers in their Claims FOR Wages. Approved June 15, 1887. In force July 1, 1887. Section 1. Claims for wages to the extent of fifty dollars preferred. Claimant's statement, requisites of. Within what time must be presented. Duty of officer, person or court. Parties interested may contest. Section 1. Be it enacted hy the People of the State of Illinois, represented in the General Assembly: That hereafter, when the property of any company, corporation, firm or person shall be seized upon by any process of any court of this sta^e ; or when their busi- ness shall be suspended by the action of creditors, or be put into the hands of a receiver or trustee, then in all such cases, the debts owing to laborers or servants, which have accrued by reason of their labor or employment to an amount not exceediog fifty dollars to each employee, for work or labor performed within six months next preceding the seizure or transfer of such property, shall be consid- ered and treated as preferred debts, and such laborers or employees shall be preferred creditors, and shall be first paid in full; and if there be not sufficient to pay them in full, then the same shall be paid to them pro rata, after paying costs. Any such laborer or servant, desiring to enforce his or her claim for wages due under this act, shall present a statement under oath showing the amount due after allowing all just credits and set-offs, the kind of work for which such wages are due, and when performed, to the officer, per- son or court charged with such ]Sroperty, within ten days after the seizure thereof on any execution or writ of attachment, or within thirty days after the same may have been placed in the hands of any receiver or trustee; and thereupon it' shall be the duty of the person or court receiving such statement to pay the amount of such claim or claims to the person pr persons entitled thereto (after first paying air costs occasioned by the seizure of such property) out of the proceeds of the sale of the property seized : Provided, that any person interested may contest any such claim or claims or any part Appendix. 193 thereof by filing exceptions thereto, supported by aflSdavit, with the oflBcer having the custody of such property, and thereupon the claimant shall be required to reduce his claim to judgment beforei some court having jurisdiction thereof, before any pai^t thereof shall be paid. (Session Laws 1887, page 308.) 35 HENS UPON RAILROADS. AiT Act to Peotect Conteactoes, Sub-conteactoes and Laboe- EE8 IN Theik Claims Against Eaileoad Companies, oe COEPOEATIONS, CoNTEACTOES OE SuB-CONTEACTOES. Section 1. For fuel, ties, material, supplies, and etc. 3. Liens of sub-contractor, materialman, laborer. 3. Notice of lien; form of; when lien attaches. 4. When notice filed with clerk; duties of clerk; fees. 5. When suit may be brought; in what court; against what parties; transcripts of justice's judgments. 6. Costs, attorney's fees in claimant's favor. 7. Failure of original contractor to complete contract; sub-contractor'a suit in case of; clerk's duties. 8. Limitation as to lien. 9. Repeal of act of February 33, 1861. Section 1. For fuel, ties, material, supplies, labor, etc. — Be it enacted hy the People of the Slate of Illinois, represented in the General Assembly : That all persons who have famished, or who shall hereafter furnish to any railroad corporation now existing, or hereafter to be organized under the laws of this State, any fuel, ties, materials, supplies, or any other article or thing necessary for the construction, maintenance, operation or repair of such roads, by contract with said corporation, or who shall have done and per- formed or shall hereafter do and perform any work or labor for such construction, maintenance, operation or repair by like contract, shall be entitled to be paid for the same as part of the current ex- penses of said road; and in order to secure the same, shall have a lien upon all the property, real, personal and mixed, of said railroad corporation as against such railroad, and as against all mortgages or other liens which shall accrue after the commencement of the deliv- ery of said articles, or the commencement of said work or. labor : Provided, suit shall be commenced within six months after such contractor or laborer shall have completed his contract with said rail- road corporation, or after such labor shall have been performed or material furnished. § 2. Liens of sub-contractor, materialman, laborer, etc. — Every person who shall hereafter, as sub-contractor, materialman or laborer, furnish to any contractor with any such railroad corporation any fuel, ties, materials, supplies, or any other article or thing, or who shall do and perform any work or labor for such contractor in conformity with any terms of any contract, express or implied. Appendix. 195 ■which such contractor may have made with any such railroad cor- poration, shall have a lien upon all the property, real, personal and mixed, of said railroad corporation : Provided, such sub-contractor, materialman or laborer shall have complied v?ith the provisions of this act; but the aggregate of all liens hereby authorized shall not, in any case, exceed the price agreed upon in the original contract to be paid by such corporation to the original contradtor : And, ■provided, further, that no such lien shall take priority over any existing lien. § 3. Notice of claim of lieu; form of; when lien attaches.— The person performing such labor, or furnishing such material, shall cause a notice, in writing, to be served on the president or secretary of such railroad corporation, substantially as follows, viz. : To president, (or secretary, as the case may be), of the : You are hereby notified that I am (or have been) employed by as a laborer (or have furnished supplies, as the case may be), on or for the , and that I shall hold all the property of said railroad (or railway, as the case may be), com- pany to secure my pay. If there shall be a contract in writing between the original con- tractor and sub-contractor, materialman or laborer, a copy of such contract, if the same can be obtained, shall be served with such notice and attached thereto, which notice shall be served at any time within twenty days after the completion of such sub-contract, or such labor : Provided, that no lien shall attach in favor of any per- son performing such labor or furnishing material until such notice shall have been served as above, or tiled for record as hereinafter provided. § 4. When notice filed with circuit clerk ; copy to be mailed ; duties of clerk; fees. — If neither the president or the secretary of such railroad corporation shall reside or can be found in the county in which the sub-eontract was made, or labor performed, the laborer, or person furnishing labor or material, shall file said notice in the office of the clerk of the Circuit Court ; and the clerk of the Circuit Court shall file and keep a record of said hotice, and cause a copy of the same to be mailed to the president or secretary of said company, for which he shall receive the sum of twenty-five cents, and said clerk shall keep a list of the names of the persons so claiming lien, and the names of the corporation against which such liens are claimed. § 5. When suit may be bi-ought ; in what court ; against what parties ; transcripts of justice's judgments.— If the money due the person having given notice as aforesaid, sliall not be paid within ten days after the money shall become due and payable, then 196 Mechanic's Liek Law. such person maj comrnenoe suit therefor, in any court having juris- diction of the amount claimed to be due, against the corporation -with which the original contract was made ; or he may commence suit, as aforesaid, against snch railroad corporation and original confcractor jointly, and execution to issue as in other eases. If execution, issued on judgment obtained before a justice of the peace, shall be returned not satisfied, a transcript of sucii judgment may be taken to the Cir- ctiit Court, and spread upon the records thereof, and shall have all tlie force and effect of judgments obtained in the Circuit Court, and execution issued thereon as in other cases. §6. Costs, attorney's fees in claimant's favor. — Whenever any suit, so brought, shall be deternained in favor of the plaintiff, the court shall allow, if before a justice, $5, if in a court of record, $20,-,attGraey's fees to be taxed as costs. § 7. Failure of original contractor to complete contract ; sub- contractor's suit in case of; clerk's dnties. — Should the original contractor in any case fail to complete his contract, any person en- titled to a lien, as aforesaid, may file his petition in any court of record, in any county through which the road may be constructed, against the railroad corporation and the contractors, setting forth the nature of his claim, and the amount due as near as may be, [and] the fact that the contractor has failed to compiete his contract. The clerk of said court shall thei^eupon cause a notice to be published for four successive weeks in a newspaper printed in the county, setting forth that said petition has been filed, and the time when the writ issued on the same shall have been made returnable, and all persons entitled to liens under this act may entier their appearance and inter- plead in said cause, and have their claims adjudicated ; and it shall be the duty of the court, in case the petitioner or claimants, or either of them, establish their claims, to -enter a decree against said corpo- ration and original contractor, for the amount to which the persons so establishing their claims are respectively entitled, and such decree shall have the same force aiid effect as decrees in other cases. § 8. Limitation as to lien. — The lien hereby created shall eon- tinue for three months from the time of the performance of the sub- contract, or doing of the work or furnishing the material as afore- said, except when suit shall be commenced, by petition as aforesaid, and in such cases all liens shall be barred by decree entered in such cause • § 9. Repeal of act of February 22, 1861.— In force July 1, 1872. (Session Laws, 1871-3, page 279.) Appendix. 197 Demand of Owner or Agent to Contractor nnder Section 35. To : I hereby request that you make out and give to me a statement (under oath)' of the number of persons in your employ, and of the sub-contractors, or other per- sons, furnishing labor or material, giving their names, and how much, if any thing, is due or to become due to each of them for work done or material fur- nished to yon in the performance of your contract with me to' on my property, situated as follows (legal description of lot or tract of land) : Dated 18.. ' (Signature.) (Make in duplicate and preserve copy.) ' Under oath may be required or not;, omit if not so required. ' Here insert what to be done. * Where agent makes request, the signature should be: J. S., by A. B., 198 Mechanic's Lien Law. Contractor's Statement to Owner under Section 35. To ;.... : The following is a statement of the number of .each and all the persons in my employ and of the sub-contractors or other persons furnishing labor or material, giving their names, and how much, if any thing, is iiue or to become due to each of them for work done or for material furnished: NAMES. Amounts due. Amounts to become due. What for. Total number of persons above named , all of whom have been or are employed by me, and who have furnished or are furnishing material or labor in and about the performance of my contract with you, for' your* described as follows: situated on (here give legal description of lot or tract of land): Dated 18.. d and sworn .day of .., A. D., 18. (Signature.) Subscribed and sworn to before me, this J Nota/ry Public. (Make in duplicate and preserve copy.) 1 State what to do. ' House, building or what. Appendix. 199 Demand of Contractor to Sub-Contractor under Section 35. To. I hereby request that you make out and give to me a statement (under oath') of -the number of persons in your employ, and of the sub-contractors or other per- sons furnishing labor or material, giving their names, and hov? much, if any thing, is due to each of them for work done or material furnished to you in the performance of your contract with me to^ under my contract with (name of owner) on the following described premises (location and legal description): Dated 18.. ' (Signature.) (Make in duplicate and preserve copy.) ' Under oath may be required or not; omit if not so required. ^ State what to do. " Where agent makes request the signature should be J. S., by A. B,, Agetii. 300 Mechanic's Lieit Law. Sub-Contractor's Statement to Contractor under Section 35. '^"••••r • ■■ The following' is a statement of tlie number of each and all the persons in my employ, and the sub-contractors and other persons furnishing material, giving' their names, and how much, if any thing, is due to each of them: NAMES. What for. Total number of persons above named , all of whom have been or are employed by me, or have furnished or are furnishing materials or labor in and about the performance of my contract with you for' , under your contract with' . , for' v on the following described premises: Dated 18.. (Signature.; Subscribed and sworn to before me, this ) ... A. D., 18.., f .day of. (Make in duplicate and preserve copy.) Nota/ry Publie. ' State what to do. " Owner. 3 What to do. Appendix. 201 Verification of Original Contractor's Claim for Lien. Statb of Illinois, ) County, )**■•■ In thk Cikcuit Court of County, Illinois. Claim for lien. . , being first duly sworn on oatk, says that . w employed by , to furnish , ... and did so furnish same in (building, altering, repairing or ornamenting a house or other building as the ease may be), on the following described real estate, to- wit: upon which real estate said hereby claim. . a lien for the amount due h as hereinafter mentioned. Affiant further says that " Exhibit A," hereto annexed and made part hereof, is true as set forth, and is a, just and true statement of the aecount or demand due from said to said ; . . for such that the same were purchased for and used in the construction of such im- provement, and the items thereof furnished on the dates in said exhibit men- tioned. That there is now due and owing to said from said .' dollars on such account, after allowing all just credits, deductions and set-ofEs. (Signature.) Subscribed and sworn to before me, ) this. ...day of , A. D. 18.. f Nota/ry Public. (This affidavit may be made by agent or employee of, as well as by, owner.) 26 203 Mechanic's Lien Law. Notice of Sub-Contractor to Owner. To(l) : You are hereby notified that I have been employed by (2) to (3) upon your (4) , and that I shall hold the said property and your Interest in the grounds liable for the amount that (5) Date (Signature. I Write: At (1) the owner's name. At (2) the original contractor's name. At (3) what was to be done; if to furnish materials, what sort — brick, lumber, hardware, etc. ; or contract work — masonry, carpentry, plastering, etc. ; or what the labor was, substantially as the case is. At (4) the description of the property: House situated No. ..^., and street, or on such a tract of land or lot — the legal description thereof. At (5) is or may become due on account thereof, as the case may be. (Make in duplicate and preserve copy.) This notice can be served on the day the sub-contract is made, and binds the owner from the date of service. Demand of Owner or Party Interested in the Property on Lien Claimant to Bring Suit Under Section 53. To I hereby demand that, within thirty days from this date, you commence suit to enforce the mechanic's lien that you claim on the following described property: Date, (Signature.) (Make in duplicate and preserve copy.) If by agent, sign A. B., by J. S., Ageni. Appendix. 203 Notice for Labor. To , You are hereby notified, that I have been employed by , •to labor upon your building, described as follows: and that I shall hold the building, and your interest in the ground, liable for the amount that (1) due. me on account thereof. Dated this day of , A. D., 18. . (1) If the claim is due, insert the word "is; "it not due, the words "may become." The above notice can be served at any time after employment and will secure ■whatever may be coming to the mechanic or laborer thereafter. The following uotice should be served if the work is done, and the mechanic or laborer wishes to secure his liea on ten per cent of the proportionate value of the contract completed, according to the provisions of section 33, and must be served within twenty days after the last day's work : To Tou are hereby notified, that I have been employed by , •to labor upon your building, described as follows: That my last day's work thereon was done on the day of A. D., 18. ., and that I shall hold the building, and your interest in the ground, liable for the amount, dollars, that is due me on account thereof. Dated this day of , A. D., 18. . (Signature.) tlie provisions of section 35 as amended by this act. Amends sec- tion 35 by requiring original contractors, when any money is due and is to be drawn from the owner, to make sworn statements; and the owner shall retain the amount due to sub-contractors for work and materials. No liens shall accrue until statement is furnished; owner liable to sub-contractor if payment is made without such, statement; penalties. 3. Repeals certain sections. Section 1. Be it enacted hy the People of the State of Illinois,, represented in the General Assembly, That sections twenty-nine (29), thirty (30) and thirty-five (35), of an act entitled " An act to revise the law in relation to liens," approved March 25, 1874, ia force July 1, 1874, be so amended as to read as follows : § 29. Sub-contractors, mechanics, workmen, etc. — Every sub-contractor, mechanic, workmen, or other person, who shall here- after, in pursuance of the purposes of the original contract between the owner of any lot or piece of ground, or his agent and the original contractor, perform any labor or furnish any materials in building, altering, repairing, beautifying or ornamenting any house or other building or appurtenance thereto, on such lot or on any Appendix. 239 street or alley and connected with such building or appurtenance, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot or land upon which the same stands, to the extent of the right, titl§ and interest of such owner at the time of making the original contract for such house or the improvement, but the aggregate of all tlie liens hereby authorized, shall not exceed the price stipulated ih the original con- tract between such owner and the original contractor for such im- provements. In no case shall the owner be compelled to pay a greater sum for or on account of such house, building or other im- provement than the price or sum stipulated in said original contract or agreement, imless payments be made to the original contractor, or to his order, in violation of the rights and interests of the per- sons intended to be benefited by section thirty-five of this act': Pro- vided, if it shall appear to the court that the owner and contractor fraudulently, and for the purpose of defrauding sub-contractors, fixed an unreasonably low price in their original contract for the erection or repairing of such building, then the court shall ascer- tain how much of a difference exists between a fair price for the labor and material used in said building or other impi-ovements and the sum named in said original contract. Said difference shall be considered a part of the contract, and be subject to a lien, but in no case shall the original contractor's time or profits be secured by this lien only so far as the sum named in the original contract or agree- ment. § 30. Notice — form. — The person performing such labor or fur- nishing such material shall cause a notice in writing to be served on such owner or his agent, substantially in the following form: To : You are hereby notified that I have been employed by to (here state whether to labor or furnish material, and sub- stantially the nature of the undertaking or demand) upon your (here state the building, and where situated, in general terms), and that I shall hold the (building, or as the case may be) and your interest in the grounds liable for the amount that is (or may become) due me on account thereef. (Date.) (Signature.) Provided, such notice shall not be necessary where the sworn statement of the con- tractor provided for in section thirty-five of this act shall serve to give the owner true notice of the amount due, and to whom due. § 35. The original contractor shall, whenever any payment of money shall become due from the owner, or whenever he desires to draw any money from the owner, lessee or his agent on such con- 240 Mechanic's Liek Law. tract, make out and give to the owner, lessee or liis agent, a state- ment, ^under oath, of the number, name of every sub-contractor, mechanics or workmen in liis employ, or person furnishing ma- terials, giving their names and the rate of wages or the terms of contract, and how much, if any thing, is due or to become due to them or a.nj of them for work done or materials fur- nished, and the owner, lessee or his agent shall retain out of any money then due or to become due to the contractor an amount sufficient to pay all deniands that are due or to become due feuch sub-contractors, mechanics and workmen, or person furnishing ma- terials, as shown by the contractor's statement, and pay the same to them, according to their respective rights, and all payments so / made shall, as between such owner and contractor, be considered the same as if paid to such original contractor. Until the statement provided for in this section is made in manner and form as herein provided, the contractor shall have no right of action or lien against the owner on account of sucii contract, and any payment made by the owner before such statement is made, or without retaining suf- ficient money, if that amount be due or is to become due, to pay the sub-contractors, mechanics, workmen or persons furnishing materials, as shown by the statement, shall be considered illegal, and made in violation of the rights of the persons intended to be benefited by this act, and the rights of such sub-contractors, mechanics, workmen or persons furnishing material to a lien shall not be affected therebv. In order that the owner, lessee or his agent may be protected, he may, at any time during the progress of the work, demand in writ- ing of the contractor the statement herein provided for, which shall be made by the contractor and given to the owner, lessee or his agent, ^nd if such contractor fail to furnish such statement within five days after demand made, he shall forfeit to such owner the sum of fifty dollars ($50) for every such ofifenae, which may be recovered in any action of debt before any justice of the peace. § 2. That sections thirty-six (36), forty-two (42), forty-three (43) and forty-fou,r (44) of said act, and all other acts or parts of acts in conflict therewith, be and the same are hereby repealed. (Approved June 16, 1887.) (Session Laws, 1887, page 330.) Appendix. 241 AMENDMENT OF 1891— HENS. An Act to Amend Sections 11, 33, 34 and 35, of " An Act to Re- vise THE Law in Relation to Liens," Approved March 25, 1874, IN Force July 1, 1874, as Amended sr An Act Approved Junk 16, 1887, and IN Force July 1, 1887. (Approved Jane 22, 1891; in force July 1, 1891.) Section 11. Quantum meruit. 33. Limited to amount due contractor. Laborer's lien for twenty days. 34. Owner may retain money, etc. Laborer's preferred. 35. Contractor to make statement to owner; what to contain. Section 1. Be it enacted by tht People rf the State of Illinois, ^represented in the General Assembly, That sections eleven, thirty- three, thirty-four and thirty-five of an act entitled " An act to revise the law in relation to liens," appro(yed March 25, 1874, in force July 1, 1874, as amended by an act approved June 16, 1887, and in force July 1, 1887, be and the same are hereby amended so as to read as follows : § 11. Quantum meruit. — When the owner of the land shall have failed to perform his part of the contract by failing to advance to the contractor moneys justly due him under the contract at the time when the same should have been paid to the contractor, or has failed to perform his part of the contract in any other manner, and by reason thereof the other party shall, without hLs own default, have been prevented from performing his part, he shall be entitled to a reason- able compensation for as much thereof as has been performed in pro- portion to the price stipulated for the whole, and the court shall adjust his claim and allow him a lien accordingly. § 33. Limited to amount due contractor. — No claim of any sub-contractor, mechanic, workman, or other person, shall be a, lien under section twenty -nine of this act, except so far as the owner may be indebted to the contractor at the time of giving such notice, as aforesaid, of such claim, or may become indebted afterward to him as such contractor : Provided, however the claim of any person for mechanical or other labor, under section twenty-nine of this act, shall be a lien for twenty days from the last day's work performed by such person, to an amount equal to ten per cent of the propor- tionate value of the contract completed up to the date of said last day's work ; Provided, such notice is served within twenty days from the day when such last day's work was performed by such per- son serving such notice, and the owner or his agent may retain for 31 242 Mechajtic's Lien Law. said twenty days such ten per cent out of any money due or to be- come due the contractor: And fromded, further, this ten per cent shall not be construed as in addition to any per cent that may be held back in pursuance of the terms of the contract between the owner and the original contractor. § 34. Owner may retain money, etc. — When the owner, or his agent, is notified as aforesaid, he may retain, from any money due-or to become due the original contractor, an amount suflScient to pay all demands that are or will become due such sub-contractor, mechanic, workman, or other person so notifying him, and may pay over the same to the persons entitled thereto. In case the amount due the original contractor and the ten per cent in section thirty-three pro- vided is not suflScient to pay such persons so entitled in full, he shall first pay all claims for mechanical and other labor in full, if the amount due the contractor and the said ten per cent is sufficient ; if not, then^T-o rata j but if more than sufficient, the balance shall be divided and paid to such other persons, fro rata, in proportion to- the amounts due them respectively at the time of snch payment. All payments so made shall, as between such owner and contractor^ be considered the same as if paid to such original contractor. § 35. Contractor to make statement to owner ; wftat to con- tain. — The original contractor shall, as often as requested, in writ- ing, by the owner, lessee, or his agent, make put and give to such owner, lessee, or his agent, a statement of the number of persons in his employ, and of the sub-contractors, or other persons, furnishing labor or material, giving their names, and how much, if any thing, is due or to become due to each of them for work done or material furnished, which statement shall be made under oath, if required of him by such owner, lessee or agent, in which case the sub-contractor shall, as often as requested, in writing, by the contractor, or his agent, make out and give to the contractor a statement of the num- ber of persons in his employ, or sub-contractors or other persons furnishing material, giving their names, and how much, if any thing,, is due to each of them, which statement shall be made under oath,, if required by such contractor ; and if any contractor or sub- contractor shall fail to furnish such statement within five days after demand, made as aforesaid, he shall forfeit to such owner or con- tractor the sum of fifty dollars for every offense, which may be recovered in an action of debt before a justice of the peace. (This act is in place of sections 11, 83, 34 and 35, chapter 82, Kurd's Revised Statutes.) (Session Laws, 1891, page 161.) INDEX. ABANDONMENT : PAGE. contractor no lien in case of, unless for cause 52 owner's breach of contract j ustifies 53-53 in such case lien for value of work done 53-53 owner's liability in case of, for what is left after cost of completion and damages 93 damages include delay, loss of use and services 93 owner can prefer those who do work after 93-94 action under this section independent of other provisions of statute . 98 sub-contractor, in case of, must proceed under section 45 of act. ... 93 difference in owner's rights where contractor abandons and continues work 93-94 requisites of petition in case of 141-143 owner must plead abandonment to avail of, in defense 160-161 ABATEMENT : plea of other action in, not good 161 ABSTKACT OP CLAIM BY CIRCUIT CLERK : does not take place of claim 130 error of clerk in making, does not afTect claim 130 ACCEPTANCE: of note or draft does not release lien 132 by sub-contractor of original's order on owner does not release lien. . 133 of work incompleted waives completion 151 ACCOUNTS: architect should keep separate, for services not professional 33 open account, no lien for goods sold on 38 cases of 38 if all buildings on one lot or tract, common account good 40 if buildings on different lots or tracts, must be kept separate for each 40 contract may be entire, but accounts must be separate 40 if payable on first of month for material delivered previous month, notice must be served within forty days from first of month 134 limitation as to notice runs from when due ; 134^126 ACTION AT LAW • and suit to enforce lien maintainable at same time 5 judgment ib, enforced only by general execution 7 sub-contractor may maintain against owner and contractor 91 sub-contractor may maintain against owner alone where has funds due contractor 139 but judgment in, dependent on right to lien 91 defeat of right to lien defeats 6, 91 244 Index. ACTS OF LEGISLATURE (see Statutes). ADDITIONAL SECURITY ; paob. of other party or on other property releases lien 132 on same property does not 133 of insurance on same property does not 132 ADDITIONAL WORK: if contract provides for, part of and lien for 53 if requested, lien for under under implied contract (see Implied COK- TKACTS) 49 ADJACENT LOTS: no lien for work on, if not owned 85-26 no lien on lot improved for improvement on 37 no lien if owned and in common iuclosure 39 exception to this rule where used for common purpose 8, 40-41 ADJUDICATION, LIMIT OF: lien or no lien, if lien amount 6 ADMINISTRATOR: contract of, will not sustain lien 36 can sue to enforce lien, sec. 26, act 1874 183 can continue action to enforce, of decedent 153 is proper party in enforcing lien 153 ADVERSE CLAIMS: parties may contest each other's claims Ill if not made parties may contest after decree Ill may raise any 'objection to other that owner could '..... 158 AFFIDAVIT: may be made by owner or agent to claim for lien 70 requisites of, to claim for lien 70 must be to dates and items of claim for lien 70 must be to statements of original and sub-contractor when demanded. 83 if insufficient, claim for lien not good 69-70 must be to bill or petition for general settlement 138-140 , of opponents in bond for costs equal 171 AGENT: no lien if agency pretended 22 architect not, unless specially made so 23 nor superintendent 24 contract by, will sustain lien 27 same, though principal not disclosed 37 declarations of, not in owner's presence, no proof of agency 27 such not admissible in evidence 27 owner's admission in arbitration proof of 27 if owner disputes prices liability only for market value 37 prices prima facie evidence of market value 27 owner not bound beyond extent of authority 38 contractor should inquire extent of authority 38 Ii«DEX. 245 AGENT — (Continued): p^eB. nbtiflcation of owner relates back to all acts of 37 TatificaCion must be on full knowledge of facts 37-38 not implied from accepting improvement 38 nor from use after improvement 28 authority to build not autliority to build on credit 38 Authority to care for, not authority for extensive improvements 38 owner not bound beyond extent of authority 28 contractor should inquire extent of authority. . , 38 may verify claim for lien 70 may demand contractor's statement 82 may demand sub-contractor's statement . 82 sub-contractor may serve notice on 98 ALLEGATION (see Pleading and Practice). ALLEGATION AND PROOF : must correspond 145 ALTERATIONS : lien for 38, 53 AMENDMENT : of claim must be within four months after final payment due 130 suit regarded as brought against parties made by, at date of amend- ment 137 of pleading (see Pleading and Practice). of statute (see Statutes). AMOUNT SECURED BY LIEN : entire debt due original contractor 7, 83 same of sub-contractor to extent of what due original 83 all due sub-contractor, if owner and contractor make fraudulent low price 94 of delay to contractor caused by owner, cost of 53 ANSWER (see Pleading and Practice). APPEALS (see Pleading and Practice). APPEARANCE . may be by solicitor 156 where one not served, such regarded only for those served 156 contra 156 APPLICATION OF PROCEEDS : must be made by court 108-109, 166-167 (See Apportionment.) APPORTIONMENT : cannot be made of lien on entire contract 53 where several buildings, must be made according to value of work and material on each 109-110, 166-167 same with regard to different lots or tracts 109-110, 166-167 246 Index. APPORTIONMENT — (Continued) : page . prior mortgage, first as to value of realty at date of contract 108-109 second as to improvements put on it 108-109 mechanic's first lien on value, added by improvements 108-109 second on land c 108-109 decree must make in this manner 166 APPURTENANCES : must be on same lot, or street or alley adjoining, and conhected with building or appurtenance on lot 42 oases of 43 ARBITRATION : permissible, as in other affairs 103 revoked by suit after submission to 103 statements in, evidence to prove agency 103 ARCHITECT : lien of, only for services as architect 33 is original contractor, must contract with owner ^ 33 no lien for auditing accounts 33 or for settling with contractors 33 or if gross charge and no lien for part 33 if employed as architect and superintendent, lien for gross charge . . 33 must keep separate account for services other than architect 33 province simply to prepare plans, specifications and details 33 is not agent of owner, unless specially made so 23 no authority as architect to order material or work 33-34 if specially authorized may do so ^ 34 powers of, matter of contract 34 where made arbiter, decision final. 34, 55 authority then superior to owner 34, 55 decision impeachable only for fraud or mistake 34, 55 proof of fraud or mistake must be clear 34 whether work or material good or ill, his honest decision settles .... 34 powers and duties of 33-24 plans, etc., must be for improvement of some particular lot 38 owner allowed to show plans, etc., not followed notwithstanding certificate 55 certificates of, must be produced if contract calls for 54 destruction of building excuses production of 55-56 wrongful discharge excuses production of 55-56 death of one of firm of, survivor no power to act 55 if survivor recognized by parties power survives 55 form of certificate of, must be according to contract 55 certificates, force of • "5 fraud or mistake of ^'^ requisites of petition by 142 AREA OF LAND SUBJECT TO LIEN : entire lot or tract on which improvement made 8 on several lots if used for common purpose 8, 40-41 Index. . 247 assignability of lien : not decided ' -.go assignee may enforce suit in name of , assignor 102 assignor cannot dismiss such suit 103 assignee may become party pendente lite 103 may use pleading of assignor IO3 assigned as collateral, assignee must prosecute. . . j ; 103 assignee of contract, may complete and enforce lien 103 ASSIGNMENT FOR BENEFIT OF CREDITORS : by owner does not release lien . . _ IO3 does not give County Court jurisdiction to enforce lien 103 contractors' proof of claim in, does not release lien 103 acceptance of dividend does not IO3 though contractor makes, may prosecute lien 103 of contractor, does not release lien of sub 103 rights of sub-contractor in case of contractor's assignment 104-106 ATTACHES : lien, when contract made 3^ 83-111 AUTHORITY : of owner to build, lien on fee 28 of agent gg of tenant gg (See Executory Contracts, 30.) of trustee in active trust 33 AVERMENT (see Pi,eading akd Practice). BILL OF REVIEW : same as in other suits and actions I73 case of 173 BLOCK OF BUILDINGS: if under one roof, lien on all . . ■ .... 39, 40 69 if on one lot or tract, lien for all ; 39, 40, 69 if under different roofs and on different lots, lien separate 39, 69 BOND TO CONVEY (see Exbcutort Contracts). BUILDING : no lien for removal of 50 BREACH OF CONTRACT : if before work begun, no lien, action must be at law 51 by owner after work begun, contractor lien for what done 52-53 by owner, justifies abandonment by contractor 53-53 by owner, excuses contractor's production of architect's certificate . . 55 CERTIFICATES (see Architects). CESTUI QUE TRUST (see Pleading and Practice; Parties). CHANCERY ; enforcement of Hen is proceeding in 6, 138 248 Index. CHARACTER OP WORK AND MATERIALS: paok. must be sack as statute provides for SO no lien for services not named in statute 50 if gross charge and no lien for part, no lien for any -^50 CLAIM FOR LIEN: must be filed within four months from date of final payment 46 this date must be that fixed in original contract 46 must be filed with clerk of Circuit Court 67 must be against owner at date of contract 67 must be itemized y 68 must show respective dates and amounts of credits 6& must correctly describe the property 6& lien only on property described therein 68 correct description in pleadings will not cure defective in claim 150 must be separate for buildings under separate roofs 69 must be separate for buildings on different lots or tracts 69 if one roof one claim sufficient 60 same, if different buildings be on one lot or tract 60 statement of credits in lump sum insufficient 60 must be properly verified 69, 70 cases of defective verification 69, 70 proper verification, how to be 70 object of Terification 71 no limit for time of filing between contractor and owner 130 must be filed within four months after date of completion or final payment as against others than owners • 46, ISO' _ if not filed within such four months no lien against creditors, in- cumbrancers or purchasers, whether prior or subsequent 120 form for verification of 201 CLAIMS NOT DUE: if mechanic lien claims, interest deducted lift if incumbrance, paid as if due 116 property may be sold notwithstanding incumbi-ance not due 116 owner cannot be ordered to pay such incumbrance 116 CLERK OF CIRCUIT COURT: duties and fees ^. 130 must make abstract of claim 130 if abstract defective, does not affect claim 430 manner of keeping books for such claims 120 COMMENCEMENT OF SUIT: against new parties by amendment, at date of amendment 12T when amendment not commencement of suit 155-156 COMMENCEMENT OF WORK: if contract express, completion must be within three years after.". . . 45-40 if implied, one year after 45, 50 if part expressed, part implied, same 45-48 no time limited for » > .. . 110 Ihdex. 249 COMMON LAW: p^o, lien in derogation of 2 COMMON PURPOSE: if tracts or lots used for, lien on all 40-109 COMPLETION: in express contracts, must be within three years after commence- ment of work or delivery of materials 44-43 in contracts implied, or part express, part Implied, in one year there- after 44r-48 if working test, date of, fixes regardless of terms of contract. . . 48, 50 if defects discovered, from date remedied 51 if contract express, test after three years, no lien 48 if contract implied, or part so, test after one year no lien 50 CONCURRENT — CUMULATIVE: remedy to enforce, both 5 CONSENT (see Owners, 35; Trustee, 33). CONSOLIDATION OF SUITS: lien suits, though in favor of different parties and in different courts, where affecting same property, consolidated on motion 163 CONSTRUCTION: strict to bring case within statute. 10 liberal, if case clearly within statute 10 letter of the law, not spirit, controls 10 none to be adopted that defeats object of statute 10 law not extended to cases within reason and spirit, but not in letter of law 10, 11 nor beyond its terms as to party or place 10 controlled absolutely by statute 10 law regards not merit or justice of claim 11 but performance of statutory requisites 11 liberal to enforce between owner and contractor 11 stricter where third party is interested 11 every necessary step must be taken to secure them ll whole act construed together 13 if one part doubtful or conflicting, construe with other parts 13 CONTRACT : if with party against whom law allows no lien, neither original nor sub-contractor can enforce ^ . 15 requisites of original contract 19 must be valid 19 made with the owner of the land 19 , 35 , 36 cases of, made with one not owner 35-36 must be to build, alter, repair, or ornament house, building or appurtenance thereof 19 must be to improve particular lot 19 in accordance with section 3 of the statute 19 must be performed 19 33 350 Index. CONTRACT — ((7ara«mM(?): paoe. or non-performance excused according to law 1!> contract and statute kept in common view 19 terms of, limit owner's liability 20 owner entitled to benefit of 20 ierms of, limit extent of others' claims 30 no contract, no lien 21 . contract with minor, lien in favor of, not against 21 immoral or contrary to public policy, no lien 21 beyond corporate authority (ultra mres), no lien 22 made out of State, sustains lien 22 must possess all elements of contracts generally 22 for payment in property, gopd 22 owner, who is 26 party making, must have interest in property 26 may be made by agent 27 to convey (see Executory Contracts, 29, 30, 31, 114-115). of tenant (see Landlord and Tenant, 35). by one of several owners, binds his interest 37 must be to improve particular lots 38 need not be for definite amount of material 41 need not describe property 41 need not provide for lien 41 must be in strict accordance with statute 44 early laws applied only to express contracts 44, 47 example of 47 express contract must fix performance within three years after com- mencement ' 44r-48 and final payment within one year after completion 44-48 no lien under, unless time for completion within three years from commencement of work or delivery of material, time of final pay- ment within one year after completion 45 in implied contracts no lien unless work or delivery of materials completed within one year after begun 44-45 contracts partly expressed, partly implied, governed by rules appli- cable to each 45-46 wjiat are such contracts 45 terms of contracts as to performance and payment decide lien 46 lien depends on terms of original contract 40 not affected by subsequent changes 46 need not fix certain date of completion 47 if date within three years, sufficient 47 cases of 46 one of two things necessary; — to limit time of performance within three years, payment within one year thereafter, oT perform within one year after commencement. . 48 if no time stated, performance in year gives lien 48 cases of ..'. 48-49 law requires only request by owner and performance in~ one year 49 where express, except as to time of completion, lien if performed within one year 49 Index. 2^1 PAGE. COlifTRACT — iGmUnued): express and implied contracts, distinction, importance of 50 must be performed or non-performance excused according to law. . . 51 after rescission of, no lien 51 if for entire work, no lieu unless all done 52 if for entire work, no lieh if burned or destroyed 53 if for part of work, lien in case of destruction 53 owner not compelled to reveal contract to sub-contractor 86 can be compelled to produce it on trial 86 owner cannot mislead contractor with regard to it 86 if refuses to show and assures payment, must pay in money 86 ■work of original and sub-contractor must be pursuant to 86-88 sub-contractor must show either performed or abandoned 88 CONTRACT TO CONVEY (See Executory Contracts). CONTRACTOR: buying as agent, if he pays no lien 36 must complete entire contract, to secure lien 52 in entire contract, destruction does not excuse completion 52 only breach of contract by owner excuses 52 if to do part, destruction excuses completion 52 in such case lien for what done 52 ' has lien for extra expense caused by delay of owner or owner's con- tractor 53 must file claim for lien with circuit clerk 67 must furnish statement on owner's written demand of all and to whom he owes 82-83 entitled to payment on furnishing statement 83 entitled to all over ten per cent reserved for labor 89 this per cent not in addition to reservation in contract 89 •CORPORATIONS: can enforce lien only for work charter authorizes 22 contract simply with members of, no lien 22 to manufacture and deal in lumber or brick, no lien for construction. 22 idtra vires of 32 bound only by corporate acts 22, 36 in dealing with public corporation, rule stricter 22 party must know scope of authority 23 contracts of, sustain lien 37 defunct, not necessary party in suit to enforce 53 CREDIT: no lien if on that of contractor only 25 or of one not owner , 25, 33 authority to build, not authority to build on 28 no lien if extended more than one year after completion 45-48 extension of, between contractor and materialman, releases owner. . 134-135 CREDITORS: those who have liens 13 section 38 of statute refers to general creditors 13 252 Index. CHEVironS — (Continued): rioB. provers of claiiuB against decedent's estate, judgment creditors IS judgment creditor can redeem only after twelve months from date of judicial sale , 129 CREDITOR'S BILL (see Assignment). CROSS BILL (see Pleading and Practick). COSTS: owner can recover only costs where defeats suit to enforce, or action at law 6 statute regulates in suit to enforce lien 173 COUNTY: suit must be brought in where land situated, section 4. 180 DAMAGES: owner cannot recover judgment for, in lien suit 6 can only assert to'reduce or defeat lien 6 for breach of (contract, no lien for 51 must bring separate action 3,t law for 51 where work not done per contract, cost of so doing 56 for failure to complete, cost of completion and for loss of use 56- for delay, waived if not claimed at time 56 allowed for owner's service in completing 56 purchaser can recoup same as owner ... 56 owner liable to sub-contractor for what is left of contract price after allowing 92-9S DAYS OP GRACE: do not extend time of payment beyond one year 47 DEATH: of one of firm of architects terminates authority 55 recognition of survivor by parties continues authority 55 DEBT: must be due when suit brought 143 DECREE (see Pleading and Pkactice). DEFAULT (see Pleading and Practice). DEFENSES (see Pleading and Practice). DEFINITIONS (see Creditor; Incumbrancer; Land). DELAY: of contractor by owner, or owner's employees, contractor's lien for expense occasioned by 53 damages allowed owner for 56 DEMURRER (see Pleading and Practice). Index. 353 PAGE DESCRIPTION: of property need not be In contract 41 less particularity required where building being erected 41 must be accurate in claim for lieu 68 lien only on property described 68 DESTRUCTION : if contract entire, improvements destroyed, no lien 53 it for part of work, lien in case of 52 excuses production of architect's certificate . . 55 DIFFERENT BUILDINGS: lien on each for work on, material in each 40, 69 claim for lien must be filed on each 69 if on same lot or tract, one lien for all 40, 69 DIFFERENT LOTS OR TRACTS : lien on each for value of what done or put on each 40, 69 if used for common purpose, improvement therefor, lien on all. 40-41, 69 DIFFERENCE IN RIGHTS: of owner and lien claimant 7 DISCHARGE OF LIEN (see Waiver and Release). DISTRIBUTION OF PROCEEDS : how to be made 108-109, 166-167 DIVERSION OF MATERIALS : releases lien to extent of 4, 5, 36 if to other lot of owner, lien thereon 36, 40 DOCKET : suit to enforce, on chancery docket 163 DOWER : no lien against 9 widow has dower in improvements, though not paid for 9 revived by sale under mechanic's lien decree that extinguishes trust deed in which dower is released 10 EJECTMENT : no right of, under lien law 3 EMPLOYEES AND LABORERS : act to protect their claim for wages 192 ENHANCED VALUE : that by improvement all that lien covers 3 EQUITABLE LIENS : what are 35 this statute does not apply to ,,......,... 35 254 Index. ERROR : paqb. only that afiecting party appealing considered 174 only that objected to on trial heard on appeal 174-175 except in judgment by default 170 ESTATE SUBJECT TO LIEN : realty owned and improved 4 whatever interest owner has 7 all land used for common purpose 8, 40-41 , ESTOPPEL : what is ownership by 32 if owner represents other to be, bound by latter's acts 33 based on fraudulent purpose and result 34 must be deception inducing action i. 34 owner must know of and abet assertion of other 34 can only be set up to prevent injustice that act or word occasions. . . 35- if party cognizant of falsity of representation, no estoppel 35 nor if fraud or injury absent 35 ' nor if false representation after contract 35 (See Husband and Wifb, 33-34.) release by estoppel - 131 silence of sub-contractor witnessing settlement between owner and original is not 131 facts constituting must be pleaded 14S EVIDENCE (see Plbadino and Pkacticb). EXCUSE OF NOTICE (see Notice, 100-101). EXECUTION: issuable for balance of debt sale of property fails to realize 5 issuable only for deficiency 168 must be against parties liable at law 16ft EXECUTOR: if with power to improve, contract sustains lien 36 necessary party 153 I EXECUTORY CONTRACTS: vendor in, must be paid in full 29, 114 if vendor authorizes improvement, lien good 30 case of 30 lien on vendee's interest subject to vendor's rights 30 vendor cannot forfeit without notice to mechanic 81 if vendor loans and contract obligates payment of purchase-money and loan as aggregate sum, lien absolute as to purchase-money, prior as mortgage to loan 114 if after contract for improvement, loans and takes new contract, lien still absolute as to purchase-money, but subsequent as to loan to mechanic's lien 114 absolute lien^of purchase-money not changed in such case 114 if gives deed and takes mortgage for purchase-money, lien prior not absolute 114 Index. 255 PISE. EXECUTORY COTfiTRACTS - (Continued): if vendor repurchases, agreeing to pay for improvements, whole property subject to lieu II4. if borrower gives deed instead of mortgage, contract to reconvey is only mortgage 114^115 EXPRESS CONTRACT (see Coktkacts). EXTENSION OP TIME: / on condition, does not vitiate lien, unless condition complied with. . 47 without condition, does release lien 47 beyond statutory period, releases lien as to incumbrances, other me- ' chanics and purchasers 115 this the case whether such prior or subsequent H6 between original parties, does not release lien , 123 by sub-contractor to contractor, releases owner 124^135 EXTENT OF LIEN: owner's interest at date of contract 7 owner's interest acquired thereafter 8 covers lots or tracts used for common purpose 8 of lien of sub-contractor, to what due original at date of notice. . . 82, 93 of sub-contractor, may exceed that of original , 88-89 EXTRA PAY: must be consideration to support promise for 53-54 EXTRA WORK: provided for by contract is part of and lien for 53 FAILURE : to perform contract, no lien 51-53 unless excused according to law 51-53 FENCE : on farm, no lien for 43 FIRE: destruction by, does not release lien 5 does as to prior mortgagee 5 if contract entire, destruction by, no lien unless done over 53 if for part of work only, lien for 53 FIXTURES: lien for 5 FORECLOSURE OF LIEN (see PiiBADiNG and Practice). FORFEITURE : cannot be declared by vendor in executory contract without notice to f ' mechanic 81 case of 31 same with landlord 31 non-payment is not forfeiture 31 256 Ikdex. FORFEITURE — {Continued) : vux. forfeiture not favored 36 allowing work after time for completion waives penalty of in entire contract 54 FORMS : demand of owner to contractor, under section 35 197 contractor's statement to owner, under section 35 198 demand of contractor to sub contractor, under section 35 199 sub-contractor's statement to contractor, under section 35 200 verification of original contractor's claim for lien 201 notice of sub-contractor to owner 202 demand of owner or party interested to bring suit under section 52, 202 notice of sub-contractor to owner , 202 notice of laborer for labor 203 waiver or release of lien for material or labor 204 FRAUD: of architect vitiates certificate 24, 55 of owner and contractor as to price enables sub-contractor to enforce lien for what price should be 94 never presumed 23, 94 must be clearly proved 23, 94 does not aid to establish lien 23, 95 but may change price 23 can be pleaded and availed of only by holder of a lien 23, 94 in representations of owner, lien for value of labor and materials of contractor 22 does not excuse delay in notice or suit 94 facts constituting must be pleaded 148 FRAUDULENT CONVEYANCES : set aside on complaint of lienholder Ill FURNACES : lien for 43 GARNISHMENT : of contractor, rights of sub-contractor in case of 98 his lien prior to garnishee 98 GENERAL ASSIGNMENT. 103-106 GENERAL SETTLEMENT (see Interpleader). GRACE, DAYS OF : on one year note, do not vitiate lien 47 HOLDERS OF SECURITIES : necessary parties 153 if unknown must be made such as unknown holders 152 HOMESTEAD : lien covers 9 IifDEX. 257 HUSBAND AND WIFE : ' p^oj,.- where husband contracts ori his own account, no lien on wife's land. 33 where wife's title of record, she not estopped to set it up, unless she holds him out as owner 33 cases of , 33 where wife held liable 34 where wife sees Work going on and does not inform mechanie of her title, her property bound 34 cases of 34 IMPROVEMENTS : paid for by owner or mortgagee for benefit of mortgage 116 (See Contract; Materials.) INCREASED PRICE : promise to pay not binding without consideration -. 53, 54 INCUMBRANCER : one who has lien by judgment, trust deed or mortgage 12 may make answer cross- bill 158 assignee of, must aver held claim at time of suit , . .^ 159 INCUMBRANCES : after date of contract, subject to lien of 3 questionable if trust deed or mortgage can prohibit lien for improve- ments 29 peculiar enforcement of, under this statute 108 prior, preferred only as to value of land at date of contract 108 what is value of land 108 mechanics are prior as to value of their improvements 108-109 what is value of improvements 108-109 prior can be scaled by enforcement of mechanic's lien 110-111 fraudulent, may be set aside Ill recorded after date of contract, subject to lien Ill record, not date of making, gives priority of 112 where date prior to, but recorded on date of contract, may precede latter 113 where prior void for informality, lien precedes, though recorded. . . . 113 by equitable owner at instance of legal, good 113 prior, sale under, title subject to liens 113 vendor in contract to convey, not incumbrancer 113-114 holder of first releasing for third, takes position of third 115 extension of time releases lien as to 115 improvements paid for by owner and incumbrancer inure to benefit of incumbrance 116 though not due, property may be sold 116 must take share of proceeds as if due 116 holder of, may make answer cross-bill .... 158 INFANTS (see Minors). 33 258 Index. INJUNCTION: page. may be had to prevent injurious use , 5 possible to prevent improvement by incumbrancer, if not able to pay therefor Ill IN REM (see Remedy). INSURANCE:' lien covers , E if mortgagee pays for, belongs to him 5 lienholder may take out 5 owner should notify insurance company of lien 5 no lien for improvement by insurance company 36 assignment of policy of, on improvement, no release 132 INTENDMENT: verdict aided by in case of trial 175 not in casefe of default 175 INTEREST: of owner in land, all that lien covers 7 after-acquired, covered by lien 8 on debt, must be claimed in petition 148 if specific sum agreed to be paid, need not be claimed 148 INTERPLEADER: if original and sub-contractors dispute amount due, owner may file bill of 100, 140-141 may file whether sued or not 100, 141 persons notified of, lose claims unless proved in 100 other proceedings stayed on motion in such cases 100 only owner or lienholder can file bill of : 100 bill of, must be sworn to 138 JOINT ANl) SEVERAL CLAIMS: parties must have joint interest to maintain joint suit or action 160 JOINT TENANTS: no lieu against each other 37 JUDGMENT: after contract, subject to lieu of 5 owner cannot recover any, against claimant, except for costs 6 lien claimant cannot have, unless establishes lien 6 his right to, at law no warrant to, under lien suit 7 judgment-creditor, right to redeem after twelve months from date of judicial sale 139 allowed for deficiency only 168 collectible only by general execution 168 JUDICIAL NOTICE : taken that land in difEerent sections are different tracts 8, 39 JUDICIAL SALES (see Saiks; Redemption). Index. 259 jurisdiction: . PAGB. Circuit and courts of concurrent chancery powern, only, in suits to enforce lien jgg in actions at law under statute, any court that has jurisdiction of amount sued for 138 JURY: lien case may be tried by 163 finding of, advisory only 163 JUSTICE OF THE PEACE: jurisdiction in actions at law under statute 91 LABORERS: preferred above all others 89-90 lien for twenty days after last day's labor on ten per cent value of what done 89 provided notice be served in that twenty days 89-131 if notice after twenty, within forty days has lien as sub-contractor, but is preferred 131 if notice after forty days no lien ' 121 required to pro rate only with each other 90 must be paid in full 90 act to protect in claiim for wages 193 LAND: lien covers only owner's interest in 7 covers all used for common purpose 8 payments in, good 88 means land with whatever is on it at date of contract 109 LANDLORD AND TENANT : no lien on tenancy at sufferance 8, 27, 35 contract of tenant cannot affect landlord's interest 35 voluntary surrender of tenant does not release lien 35 forfeiture of lease by landlord cuts off lien 35 must notify mechanic to effect forfeiture 35 if lien attaches before forfeiture, mechanic can pay rent and enforce lien on term of tenant 36 landlord authorizing improvement, his ostate bound by lien 36 lien attaches though improvements become lessor's 36 attaches for machinery that tenant may remove 36 provision in lease to purchase improvement not covenant running with laud, lien does not continue against grantee 36 LEASES (see Landlord amd Tenant). LESSEE (see Landlord and Tenant). LESSOR (see Landlord and Tenant). LEGISLATURE : may change remedy 12 cannot change contract 13 powers of 13 360 Index. WEN: theory of law of, to promote proper use of land 3 is part of public progress 2 secures author of actual value on that value 3 enforced by sale only 3 gives no right to ask for receiver 3 no right of ejectment 3 nor for injunction except to prevent injurious use 8 takes precedence of prior mortgage to the extent of value pf improve- ments ' 3-3 is insurable interest 5 involves but two questions, lien and amount 6 covers owner's interest whatever it may be at time of contract 7 secret, needs no record 3 attaches when contract is made 3 strictly statutory 3 in derogation of common law 3 opposed to common right 3 covers real estate only 4 covers personalty when attached thereto 4 or part of system of machinery attached 4 destruction of improvements does not release lien on land as to owner. 4 does, as to mortgagee 5 does not follow materials 4 follows proceeds of materials wrongfully severed and sold 4^5 is a cumulative and concurrent remedy ; 5 suit to enforce and action at law maintainable at same time 5 no priority between claimants of . . . 5 chancery proceeding, quad in rem - 5 binds only 'parties and privies 5 defeat of lien defeats suit 5 does not bar action at law ... 5 suit to enforce involves but two questions — lien and amount 6 covers owner's interest, whatever it may be, at date of contract 7 also after-acquired interest 8 also all tracts or lots used for common purpose 8 covers whole lot or tract on which improvement is put 7-8 covers homestead , 9 acquired under statute in force at date of contract 12 enforced under statute in force at date of suit 12 covers improvements lessee may remove 36 covers different lots if all used for common purpose 40-41 depends on terms of original contract 46 no lien on tenancy at sufferance 8 against public property 9 against dower right 9 for work or material prior to contract 31 or without contract 21 against minor, but for 81 under immoral contract 31 Index. 261 LIEN — iOontinued) : page. NO LIEN under contract against public policy 21 for persons not named in statute 14 for work not named in statute 14 for work of corporation beyond its corporate authority 23 if contract not witli owner or bis agent 85 for architect, except for services as such 23, 142 for superintendent, except for services as such 23, 142 where lump price and lieu not allowed for part 23 for original or sub-contractor where lien not allow^ed under original contract 15, 21 for guarantor of payment 25 where party building has no title 35, 26 where trust forbids 29 after foreclosure of prior mortgage begun 29 against vendor in contract for sale , 29, 30 except where he authorizes improvement 31 for work or material after rescission of contract 35 against lessee, except on leasehold interest j . . . 35 against landlord's estate for tenant's improvement 35 for improvements by insurance company 36 for contractor who buys as agent and pays 36 on adjacent lot 39 for appurtenances, unless on same lot or tract, or on street or alley adjoining, and connected -' 42 ^ for stoves J 43 for lightning rod 43 for fencing on farm 48 for moving building from one to other lot ' 50 unless contract completed 51-52 except where non-completion excused by law 51-52 for hire of plumber's license 50 for materials, unless used 56 if contract express and fixes completion at more than three years after commencement 45-50 if final payment fixed at more than one year after completion. . . 45-50 if contract implied or partly so, unless completed in one year after commencement 45-50 against creditors and others, unless claim filed in four months after date of final payment 120 for sub-contractor or laborer, unless notice served on owner within forty days after completion of contract, or payment due original contractor 121 unless suit brought within two years after claim is filed 126 for sub-contractor, unless suit brought within three months after cause (ff action accrues 127 except where delay excused by payment not then being due original contractor 126, 127 unless suit brought within thirty days after demand by owner or party in interest 128 where other security taken for debt 138 362 Index. LIEN — {Continued): page. NO LIEN in common on different buildings 40-69 or on different lots or tracts 40-69 LIENHOLDER : may insure 6 no priorities between 5 LIMITATIONS : general statute does not apply to liens 118 act fixes periods of, for completion, payment, filing claim, bringing suit 119 claimant must regard these 119 to file claim, serve notice, or sue before times fixed, as fatal as after. 119 none as to when work shall begin 119 none as to filing claim between owner and contractor 130 as between contractor and others, must file in four months after final payment is due '. 130 case stated 130 importance of owners taking releases 130 sub-contractor must serve notice within forty days after claim is due. 131 or sub-contract completed 131 contractor's correct statement excuses notice 131 time as fixed by original contract controls 131 subsequent changes do not affect 121 laborer must serve notice in twenty days after last day's labor to hold on ten per cent value of what done 131 if after twenty, within forty days, has lien, and is preferred 131 if after forty days, no lien 131 if payment to be made on completion, but certain day fixed therefor runs from date of completion, whether on date fixed or not 133 if defects discovered and remedied, runs from date remedied 123 if completion depends on working test, from date of test 133 if contract provided for alteration, from date of such 133 if for mortgage to be given, and it is not given, from date of failure togive , 133 if contract entire from date all done 133 case of 138 as against creditors who prove claims against decedent's estate 124 where material purchased on time, time runs from last delivery 124 if purchaser delays, seller may tender 134 runs from delivery or tender of materials 134 unless custom to pay first of following month, in which case, from first of month 134 original contractor cannot sue till claim filed 136 nor till debt due .^ 136 nor after two years from filing claim 126 sub-contractor cannot sue until ten days after notice to owner 126 if money not then due contractor, not until ten days after it is dub him 126 but must sue within three months after cause of action accrues 126 Index. 263 LIMITATIONS - {Continued): PiGE. If money not due original contractor, within three months after it is due him in time 136 case of 126 if original contractor does not make persons parties to suit within two years after filing claim, his lien lost as to them 127 same if isub-contractor does not within three months after cause of action accrues 137 if lien claimant does not bring suit within thirty days after demand, lien lost , 138 runs from date claimant can enforce payment 128 once run, is a perpetual bar 128 as to filing claim, for benefit of creditors 128 as to suit thereafter, for benefit of owner as well 128 as to sub-claimants, for benefit of owner, other lien claimants and creditors 128 must be pleaded to be availed of 159 LIGHTNING ROD: no lien for 43 LIS PENDENS : description should be such as to create lien by 68 LOANS (see Executory Contbacts ; Inctjmbbakcbs). LOTS: statute recognizes difference in lot and tract 9 no lien on adjacent, even if inclosed 38 must be to improve particular lot 38 no lien on open account without reference to particular lot 38 MACHINERY : lien for 43 for part of system of, though not attached to land 43 MARRIED WOMEN (see Husband and Wipe). MATERIALMEN : no lien unless material is used 56 right to lien on furnishing, though not used, discussion of 57-66 MATERIALS : become personal property when severed 4, 26 if wrongfully and sold, lien follows proceeds 5, 26 same of proceeds of material severed by fire and sold 5 delivered prior to contract, no lien for 21 delivered after rescission of contract, no lien for 35, 51 bought out of, but used in this State, lien for 22 where removed and put in building on other lot of owner, for value oneachlot ' 26, 40 not necessary to contract for definite amount of 41 no lien for, unless used 56 discussion of right to lien for, on furnishing 57, 66 necessary allegations with regard to, in petition 142 364 Index. MEASURE OP DAMAGES (see Damages). MINORS : EAOB. lien on their coDtract in favor of 2t, no lien against 31 MONEY : contract need not be for payment in 83. 88 if property not delivered, demand becomes for 33, 88 MORTGAGE : recorded after date of contract, subject to lien of mechanic..-. . . 5 , lieu is a statutory mprtgage 5 (See Incumbrances.) MORTGAGEE : may insure for hia own benefit 5 improvements paid for by, his lien on prior to mechanic 116 same where owner pays for 11& 1 (See Incumbrances,) MORTGAGOR: ' contract of, after foreclosure, will not sustain lien 38i (See Incumbrances.) MOVING BUILDING: no lien for 50 MUNICIPAL PROPERTY: no lien on 9 NATURE OP LIEN (see Lien). NATURE OP PROCEEDING: ■ chancery, quaiiin rem s 6 does not bind other than parties and privies 6 NEGLECT TO SATISFY LIEN: for ten days after payment, fifty dollars penalty 139 this does not apply to sub-contractors , 13ft NON-PAYMENT: justifies abandonment 53-5S NON-RESIDENT: can enforce lien 33 notice of subcontractor to, must be filed with circuit clerk 99 notice to, of suit by publication 156 NOTES:, days of grace in, do not extend beyond one year 47 taking, unless in payment, no release of lien 131 must be surrendered and cancelled before decree allowed 131 Index. 365 NOTICE: makes statutory contract tetween owner and sub-contractor 86 (See JuBiciAL Notice, 8-9, 39; PBRPECTiNa Lien of Sub-Contractor.) OATH: answer must be under, unless waived 157 bill of interpleader must be under 138 claim for lien must be under 67-69 OBLIGATIONS: of owner 86 of sub-contractor 86-88 ORIGINAL CONTRACTORS (see Contractor). OVER-PAYMENT: if made to one, others may sue for their share 116 OWNER: should notify insurance company of lien 5 can recover no judgment against claimant in lien suit, except for costs 6, 160 cannot recover damages 6 cannot recover on offsets or counterclaims 6, 160 entitled to benefit of contract 30 its terms limit his liability 20 promise to pay for work already done or for materials delivered to contractor, not binding 31 if representations fraudulent, contractor can recover value of work and material 33 bpund by certificate of architect 34, 55 no lien unless contract with .' 25 improvements without consent become his 25 no obligation to pay for such 35 liable for act of agent, though agency not disclosed r 37 if disputes prices for fraud, liability only for market value 37 ratification of agent's acts must be on full knowledge 38 not Implied by acceptance of improvement 38 nor by use of 38 if authorizes improvement, lien attaches 28 case of .| 28 three classes of, whose contracts do not sustain lien i . . 28 (1) of trustee of active trust where deed forbids 39 (8) owner after foreclosure begun 39 (8) executory purchaser 29 but if latter has authority to build lien exists 30 and lien exists against his estate or interest at date of contract 31 trustee with power to build, is owner 33 ownership by estoppel sustains lien 83 if improvement without consent of, and he removes them, no lien. . 85 no lien for work after rescission of contract by 35 if one of several owners contract, lien on his interest 86-37 134 . ' 266 Index. OWN'EB. — iOmtinuea): paob. must keep work in progress 53 liable in damages to contractor if he does not 53 premise of, to pay extra for same work not binding without consider- ation 53-54 if consideration is binding 53-54 cases of 54 should not pay contractor without statement 75-80 only safety to demand statement and pay after obtaining 83 cannot be held to pay more than contract price 83 except where same is fraudulent 82 Hiust pay as soon as contractor furnishes statement. 83-84 should reserve ten per cent to pay labor 83-84 if statement false, owner protected by it ^. . . 84 wherein section 85 for owner's benefit 85 obligations of owner 86 owner, in effect, guarantor of contractor . . 86 notice by sub-contractor makes statutory contract with 86 m)ist see sub-contractors paid to extent of contract price 86 is not compelled to reveal contract to sub-contractor 86 can be compelled to produce it on trial 86 cannot mislead sub-contractors with regard to it 86 has ten days after notice or payment due original to pay sub-con- tractor i 90 if defeats lien, defeats ^ub-contractor's action at law 91 must pay sub-contractor first on notice 99 should not pay him without consulting contractor 99 is entitled to reserve amount named 100 in case of dispute betweeh contractor and sub-contractor as to amount due latter, may file bill of interpleader 100 cannot be ordered to pay incumbrance not due 116 importance of releases of liens to 130-121 in case of abandonment, pleadings for defense (see Pleading and Pbactice, 160-161). PARTICULAR LOT (see Lots). PARTIES: only parties and privies bound by proceedings 6 those not made to suit, may contest rights after decree Ill (See Pleadistg and Practice ; Suit.) PARTNERS : new, no lieu under contract with old 31 dissolution does not afiect lien on property. 151 if order improvements on land of one, both debt of firm and lien for 151 partner completing after dissolution can enforce lien 151 as to new partner 151 PARTY WALL: no lien for, without adjoining owner's consent 37 Index. 267 PAYMENT: in property good 22, 88 if not delivered, payment must be in money 33, 88 if not made justifies abandonment 52, 53 liability of owner making without statement 75, 84 must be according to original contract 88-88 owner has ten days after notice to make to sub-contractor 90 owner has ten days after money due original contractor to do so ... . 90 due on delivery of materials •. 125 unless custom to pay on first of month 125 limitations run from time due 124-126, 138 in case final put at more than one year after completion, no lien 45-50 PENALTY: fifty dollars for contractor not funishing statement to owner on demand 83 same of sub-contractor to contractor 83 twenty-five dollars for neglect to release lien ten days after paid. . . . 139 PERFECTINO ORIGINAL CONTRACTOR'S LIEN: must file claim with clerk of circuit court 67 claim must show time when work done 67 when materials furnished 67 when credits were made 67 when balance due 67 must be filed against owner who made contract 67 must describe the property C7-68 lien covers only property it describes 68 must be itemized and particulars necessary 68-69 where different houses, must be against each for what done or fur- nished on each 69 if under one roof, one claim sufficient 69 if different building on one lot or tract, one claim sufficient 69 must be properly verified 67-69 cases of defective verification 69-70 proper verification, what is 70 object of filing claim 71 if not properly made, purchasers and incumbrancers may disregard , 71 PERFECTING SUB-CONTRACTOR'S LIEN : must serve notice on the owner 74 may serve notice as soon as makes contract 74 only safety to do so 74, 82 notice by sub-contractor makes statutory contract with owner 86 mutual conditions of this contract 86 filing notice with circuit clerk useless 96 delivery by mail not sufficient 96 must serve written notice 96 on owner or agent in person 96 must be dated and signed 96 if contract written, must serve copy with notice 97 as to erroneous name of contractor in 97 268 Index. PERFECTING SUB-CONTRACTOR'S hlE^ — (Continued) : paob. must serve in forty days after completion or money due 97 as to owner's acceptance of orders before notice 97 in case pwner cannot be found or does not reside in the county, must file notice witli circuit clerk 99 also publish copy four weeks in newspaper 99 can select newspaper 99 if no paper, post notices in four most public places in vicinity of im- provement 99 notice gives on lien on what due or to become due original contractor at time of 99 notice not necessary where owner notified by contractor's statement.. 100-101 but if statement does not give true notice, no excuse 101 PERFORMANCE : of express contract must be within three years after commencement of work or delivery of materials 51 substantial and acceptance gives lien 51 • if entire, though improvement destroyed, niust complete before lien. 52 PERSONS ENTITLED TO LIEN : only those named in statute 14 those who contract directly with owner 14 those who contract with original contractor l4 does not extend beyond sub-contractors 14 each must take special statutory steps to secure and enforce lienl ... 15 PERSONAL PROPERTY : no lien for 4 unless attached to realty 4 improvements severed bdcome 4 PETITION (see Pleading and Practice). PLANS AND SPECIFICATIONS : owner allowed to show not followed, notwithstanding architect's certificate 55 PLEADING AND PRACTICE : bringing lien suit forcing assignment in rem 137 parties and privies bound 6, 137 rights of all parties must be settled in 137 omitted parties not bound by 137 original contractor need not make sub-contractors parties 137 must make incumbrancers and purchasers parties 137, 151-153 must make both trustee and cestui que trust parties 137, 153 but if cestui only made party, and suffers trial on merits, all under him bound 138, 152 sub-contractor must make all parties, original should, and original also 138 omitted party can sue for share of proceeds 138 where party purchases, court can set sale aside 138 if prior incumbrancer omitted, sale subject to his incumbrance , . 138, 154 Index. 269 PAGE. PLEADING AND FRACTlCE—(Gontinuec[): in such case purchaser under foreclosure of prior incumbrance gets superior title 138 only circuit court, or court of concurrent chancery powers, jurisdic- tion to enforce lien 138 any court having jurisdiction of amount, jurisdiction of actions at law under statute 138 bill or petition need not be sworn to 138 except for general settlement or interpleader 188 requisites of original contractor's petition 139 has two forms of action: (1) to enforce lieu for full performance 139 (2) to enforce lien on quantum meruit 139 sub-contractor has five forms of action : (1) to enforce his lien same as original , 139 (2) to sue owner at la w, where he has funds due original 139 (3) to sue owner and original jointly 139 judgment in these two actions enforceable by general execution only. 139 (4) for general settlement 139 (5) in case of abandonment by original contractor 139 petition of sub-contractor, requisites of 140 for general settlement, must file sworn bill 140-141 where original contractor abandons, must proceed under section 45 of act 141 requisites of petition in case of abandonment 141 no peculiar rule of pleading in lien suits 143 averments of performance of statutory requirements essential 143 averments must bring party within statute. 143 must not only aver debt due, but performance, work that lien is al- lowed for 143 must aver materials bought, furnished for and used in improvement on specific property 142 must aver performance of all foi-malties to acquire and fix lien 142 must aver dates, work begun and completed 143-144 also date of filing claim or serving notice 143-143 case of petition on note 148 if note taken, must tender for cancellation 144 if judgment, petitioner must offer to release 144 must set out nature of contract 144 can only recover on contract sued on 144^145 contract attached as exhibit controls statement of and aids defective pleading 145 in all cases petitioner confined to his own theory, and cannot recover on other, however meritorious 145 cases of variance proving fatal 145 allegation of payment on delivery sustained by proof no time agreed upon 146 need not aver particular date of completion 146 averment of, within statutory period sufficient. . ,. 146 where contract makes obtaining certificates of architect condition pre- cedent, must aver obtained 146 270 Index. PLEADING AND PRACTICE — {Oontihued): page. or excuse according to law for not obtaining 146 if attacks architect's certificate, must aver facts of fraud or mistake. 147 allegation as to architect's certificate unnecessary unless contract requires 147 must aver performance of contract 147 not necessary to negative excepted cases in section 3 of act 147 as to performance of conditions by third parties 147-148 if ownership by estoppel relied on, must aver facts constituting 148 case of defective pleading of estoppel 148 must claim interest 148 must correctly describe property 148 correct description in petition cures defective in contract 148 but does not cure defective description in claim 150 if defendant does not deny ownership, admits 149 cases of 149 suit must be brought by parties in interest 150 interest must be joint to sustain joint action 150 case of suit by partners 150-151 Defendants, who must be made: all interested in property 151 legal or equitable claimants , 151 holders of secured notes 153 in active trust, cestui, proper but not necessary party 153 where interposed between borrower and lender, is 153-153 heirs, executors, administrators 153 defunct corporation not 153 unpaid claimants are 153 such may become parties to suit, though could not originally institute suit 153 those not made parties not afEected 153-154 improper parties 154 those paid 153 wife, where only husband's interested affected , 153 landlord, where tenant's estate only affected 154 in such case, interest of wife or landlord not affected by default. 154 parties acquiring interest pendente lite proper but not neeesssary parties 154r-155 such person must make himself party by supplemental bill, not by petition ;».... 155 Amendments: may be made to briijg parties before court ... 155 if made within ten days of tei-m, entitles to continuance 155 for variance may be made on hearing 155 when not new action 155-156 Answer: must be made under oath unless oath waived 157 if under oath, is evidence equal to witness 157 is overcome by two witnesses 157 or by one and corroborating circumstances 157 to be evidence, must be responsive 157 IlTDEX. 371 PLEADING AND VRAGTICE — (Cmtinued): Answer: p^e^ when not responsive ^ 157 if oath waived, not evidence, though sworn to 157 may be made cross-bill, but not necessary to 157-158 cannot be made cross-bill to recover damages 157 damages can be set up as ground of defense only 157 if by lien claimant made defendant, must set out his cause of ac- tion, same as petition of party who brought suit 157-158 such party may make answer cross-bill against co-claimant to attack lieu of 158 assignee of incumbrance, made party defendant, must aver held same when suit was brought 159 incumbrancer cannot set up mechanic lieu claim in answer 159 must do so by cross-bill 159 limitations must be pleaded to be availed of 159 no particular rules of defense 159 must set up facts 159 defendant may buy and set up superior title ' 160 case of 160 owner can only defeat lien where sued with original 160 but original can recover against sub-contractor so suing 160 in case of abandonment, owner defendant must aver payments made prior to, rightful 160 also that cost of completion exceeds what left of contract price. . 160-161 averment as to non-ownership 161 plea of other action in abatement not good 161 must move to consolidate causes 161 Replication : concludes issues 161 must be general 161 owner entitled to time to reply to answer of co-defendant 161 if answer sets up new matter required to be answered or avoide^d, must be by supplemental bill, not replication 161 Demurrer : as in other suits and actions 162, 163 special, must show cause of 162 Decree : only on lien as a basis. 7 no lien, no decree 164 must adjudge contract relations 164^165 show when llten attached 165 not give lieu prior thereto 165 must correspond with petition and proof 165 must settle rights of all parties and partition before ordering sale 165 if it appears others interested not made parties, decree without having tbem made, error 165 may find amount due one party and not order sale 165 correct practice to make no decree until rights of all found and determined 165 SI'S Index, PLEADING AND PRACTICE— (CroiraMeti): Decree: paok. must declare order of priorities 165 must apportion proceeds of sale 165 need not find interest of party in default 166 apportionment must be pro rata 166 labor claims must be paid in full 166 court must require proof of value of land prior to contract for improvement '. 166 added thereto by improvement 166 as prior incumbrancers have preference on land, liens preference on value added by improvements, apportion proceeds of sale on that basis 166 surplus to owner 166 court may reserve direction as to surplus for further order 166-67 value of both land and improvements must be found 167 to find value of one only, error 167 case of 167 value of land must be at date of contract 167 must direct sub-contractor to be paid out of amount adjudged original 168 must give general execution for deficiency only 168 may order sub-sub-contractor paid out of fund due sub-contrac- tor 168 if suit be against different tracts or buildings, must order each sold for what done on it ... 1 168 if all on same lot or tract, may order sale in aolido 168-69 case of 169 must not order sale of improvements without land 169 may order part sold if divisible 169 or interest only of debtor, if thereby lien can be paid 169 must show against right property , 169 in favor of sub-contractor, must be against original and owner. 169 no finding against original error 169 must show materials bought for property ordered sold 170 ■when defaults may be taken 170 setting aside in discretion of court , 170 if discovery of interest sought and defendant defaults, whole property may be sold 170 rule to plead not necessary after publication 170 decree pro con. may be rendered on overruling demurrer 170 default admits'bnly what petition properly alleges 170 defects in petition, default taken on may be taken advantage' of by motion in arrest or on appeal , 170 if petition aver no facts on which lien can be predicated, will not justify decree 170 decree pro cpnfeaso discretionary with court, may order proof. . . 171 , default cannot be taken where answer of mortgagee on file 171 nor against wife for lien sought on husband's property 171 may be taken pending motion for costs, non obstante 171 Ikdex. 373 PLEADING AND PRACTICE — (Continued): Sale: PAQB. must be in accordance with decree 171 if not correct, court may set aside 171 to party to record set aside on reversal 173 to one not party, cannot be set aside 173 wbeu court may set aside decree 173 when party bound by erroneous decree 173 case of 173 owner cannot complain of sale decreed subject to prior mortgage 116 mechanic can 116 Costs: statute controls 173 PEIORITIES: none between lien claimants 5-6 adjustment of (see Pleading and Practice). PROCEEDING: chancery, quasi in rem 6 (See Pleading and Practice). for general settlement (see Interpleader). PROCEEDS OF SALE: must be paid to claimants pro rata ; 6, 116, 166-167 PROCESS (see Summons, 156). PROMISE: of owner to pay after work done for, or material delivered to con- tractor, not binding 31 nor to pay increased price for same work 53 unless extra consideration therefor .' 54 if extra consideration binding 54 cases of 54 PROPERTr: payment in, good 23 contract need not describe 41 may be proved by olSier evidence 41 t PUBLIC PROPERTY: no lien against , 9 PROFITS: loss of, by wrongful discharge, no lien for 51 action must be at law for 51 PUBLICATION: summons may be by, as in other cases 156 equal to personal service 156 judgment in personam may be rendered on 156 35 274 ' Index. PURCHASER: page. after contract, takes subject to lien of 3, 113 of notes in executory contract, takes place of vendor. 30, 114 can recoup for damages to defeat lien same as owner 56 must make inquiry as to liens '........ 113 where becomes pending enforcement of lien, and sells improvements, proceeds subject to lien 113 reserving from purchase-money to pay lien, cannot complain of en- forcement 134 not liable "personally, for liens 113 at judicial sale, if stranger to proceeding, protected in title 172 if paf ty to proceeding, reversal sets aside , 17& QUANTUM MERUIT: in case of fraudulent representations, contractor can recover on 23-33 in case of wrongful discharge can recover on 53 suit in case of, must be under section 11 of act 53 RATIFICATION: use of property, receipt of rents after age by minor, is not 31 use of, by owner is not for unauthorized improvement 27-28 of agent's acts relate back to beginning of 27 must be on owner's full knowledge of facts 37 if misled or mistaken as to facts, not binding 3S / RAILROADS: act with regard to liens against 194 RECEIVER: not allowed in action to enforce lien 3 RECOUPMENT: allowed to defeat or reduce lien 6, 56- purchaser as well as owner, right of SB- REDEMPTION: in lien sales as in other judicial sales 13& judgment creditor can make after twelve months only 129' RELEASE OF LIEN (see Waivkk and REiiKABB). I REMEDY: by lien, is cumulative and concurrent 5 chancery 6 no vested right in 13 REMITTER: not allowed on appeal to avert reversal , 176 REMOVAL OP BUILDING: no lien for 50 Index. 275 REMOVAL OF MATERIALS: ; page. lien does not follow 25, 26 if wrongful, will follow proceeds of sale of 36 if put on other lot of owner, lien for value added to such lot 26, 40 REPLICATION (see Pleading and Pbacticb); REPRESENT ATION : if fraudulent of owner, contractor can enforce lien for value of work. 23 of ownership in other (see Estoppel). REQUISITES FOR CONTRACT (see Contract). REQUISITES FOR LIEN (see Lien). RESCISSION: no lien after rescission of contract for work done or materials fur- nished 35, 51 RES ADJUDICATA 174 REVIEW, BILL OF (see Bill op Review). ROOFS: different, make different liens 39 unless all on one lot or one tract 40 SALE: on credit of contractor, no lien for 35 after contract, subject to lien 5 under prior incumbrance, is subject to lien 113 owner cannot complain if decreed subject to prior mortgage 116 mechanic can 116 SATISFACTION: but one can be had of debt 5 SATISFYING LIEN (see Penalty). SCALING PRIOR MORTGAGE (see Incttmbkancb). SCHOOL-HOUSE: no lien for 9 SEWERS: no lien for 9 SIDEWALK: no lien for 9 SEVERANCE OF MATERIALS (see Removal op).' SERVICE OF PROCESS (see Summons) 156 SET OFF: in suit to enforce, owner can plead only to defeat lien, cannot recover judgment on 6 in suit by sub-contractor against owner and contractor, owner cannot recover on, but contractor can 160 376 Index. SPECIFICATIONS: page. owner may introduce in evidence, notwithstanding architect's cer- tificate 55 STATEMENT OF ORIGINAL CONTRACTOR: must show what due each sub-contractor, materialman and laborer. . 75 under law of 1887 75-80 under present law 80 comparison of former and present law as to 80-82 must contain : number of persons in contractor's employ 83 names of sub-contractors, materialmen and others, furnishing or to furnish material, .or labor 83 must be under oath when demanded 88 also respective amounts due, or to become due each 83 efEect of 83 contractor entitled to payment as soon as makes 83-84 though defective, protects owner who pays on faith of it 84 if not made within five days after demand, penalty of fifty dol- lars 80, 83 request for, by owner, must be written 83 request for, may be made by owner or agent ; 83-83 STATEMENT OF SUB-CONTRACTOR: to be made to original contractor on request of him. or his agent .... 83 but this to show v^hat is diie, not to become due, section 35 . , 188 STATUTES: of 1874, as amended and in force March 1, 1894 177 of June 15, 1887 (wages of employees) 193 of 1873 (liens upon railroads) 194 of 1835 '206 of 1883 205 of 1839-1840 ...., 307 of 1845 213 of 1861, February 18 (implied contracts). . . , . , 318 of 1861, February 22 (railroads) 319 of 1863, February 14 (sub-contractors) 319 of 1863, February 14 (improvements beyond lot line) 323 of 1869, March 30 (redemption) 234 of 1869, April 3 (sub-contractors) 324 oif 1874 (as originally passed) 227 of 1879, May 24 '. , 236 of 1887, May 31 286 of 1887, June 16 338 of 1891, June 22 241 (See Construction.) lien acquired under statute in force at date of contract 12, 13 enforced under statute in force when suit brought 12, 13 STOVES: no lien for 43 Index. 277 SUB-CONTRACTOR : PA£IE. lien of, depends on orginal contractor's contract 15 if no lien under that, cannot enforce his own lien 15 nor sue original and owner, or owner alone ; 15 as to parties in suit (see Pleading and Pbactice). early laws allowed no lien to ' 73 ■when lien first allowed to 73 progress of law in favor of 73 owner liable to, when notified 74 may serve notice as soon as makes contract 74 this only safe method to secure lien 74, 83 statement of contractor as afEect^ right of ^ 74 law of 1887, as aSects sub-contractors 75 present law, as affects sub-contractors 80-83 lien of, attaches at date of original contractor's contract 83 but to extent only of what due original contractor at time of notice to owner 83 all Hens cannot exceed this 83 obligations of 87 must furnish statement to contractor 83 must regard owner's contract 87 must do work pursuant to it 87 rights fixed by terms of original contract 87 changes in, do not affect them 87 are, in effect, guarantors of original contractor 87 must take payment as his contract provides, and in what it provides," money or property 88 if contractor under-estimates cost, they can only get pro rata share of agreed price . ...^ ^. . 88 if he abandons, what is left after cost of completion and damages. . . 88 to recover, must show terms of original contract 88 what was done under it 88 that it was completed or abandoned 88 what owner owes on it 88 extent of his lien may exceed contractor's 88 if completion fixed beyond three years, or final payment beyond one year thereafter, original no lien, sub contractor has 88 where original loses lien by abandonment, sub-contractor has 89 where owner and original conspire on low price, sub-contractor has lien for what work or material worth 89 lien of. depends upon independent provisions of statute 89 statute after section 39 applies exclusively to sub-contractors 89 except sections 52 and 53 190 can sue to enforce lien only after notice, and ten days after money due original contractor , 90 may bring action at law against owner and contractor ....:■ 91 right to personal judgment in such action, dependent on right to lien. 91 has three months after money due contractor in which to bring suit. 91 lien of, limited to amount due or to become due contractor at date of nqtice - 93 278 Index, SUB-CONTRACTOR — (Continued) : paok . this amount controlled by deductions for delay, damages for defect- ive construction, and rightful payments 92 if owner has funds due original contractor at the time of notice, he may sue 97 may sue after contractor's statement 97 garnishment, right of sub-contractor in case of 98 in case original abandons, must proceed under section 45 92-93, 141 has lien then only for what left after cost of completion and dam- ages to owner 93-93 those who do work after abandonment have lien prior to those who do before ^ \ 93-94 if owner and contractor make fraudulently low price, lien for reason- able price 94 fraud must be clearly established 94 low bidding is not 94 does not aid in establishing lien of 95 can be taken advantage of only by him who has lien 95 silence of, witnessing settlement between owner and original, does not estop his assertion of lien 131 has five methods to collect debt under statute , 139 requisites of petition of 140 SUB- SUB-CONTRACTOR : no lien , 15 if fund in court, may enforce payment out of what due subrcon- tractor 15, 168 SUIT: to enforce lien and action at law maintainable at same time. . . , 5 either fails if right to lien is defeated 6 if owner defeats, can recover costs only 6 commenced against new parties by amendment at date of amendment 127 general character of, under statute 137 when amendment not commencement of suit 155-156 to enforce lieu, must be in chancery 153 affecting same property, though by different parties and in different courts, consolidated on motion 163--164 SUMMONS: as in suits in chancery 156 by publication as in other cases 156 SUPERINTENDENT: duties wholly supervisory 24 not agent of owner 24 powers wholly by contract 24 suit by, averments necessary 142 SUPREME COURT: powers of 175 SURRENDER (see Landlord and Tenant; Executory Contkact). SECURITY (see Waiter and Relkabb). Index. 279 TENANT (see Landlord and Tenant). paob. TENDER: seller may make if purchaser delays 124 of bulky articles, as lumber and brick, made by setting apart and notice to buyer 1SJ4 TEST: working, fixes date of completion 48, 50 TRUST DEED (see Incumbkances). TRUSTEE : contract of, will not sustain in lien wliere deed forbids 39 with power to build, consent of, gives lieu 33 THEORY OF LAW (see Lien). TIME: for completion in express contracts (see Contbacts). for payment in express, contracts (see Contracts). for completion in implied contracts (see Contracts). architect's certificates as to 54 importance of allegation of, in petition 143 TITLE : if not denied in pleadings, admitted , 148-149 TRIAL : involves but two questions, lien and amount. 6 may be by court or jury 163 cases ready should have, regardless of those not prepared 164 cases in different courts, affecting same property, consolidated on motion t. 163-164 different claims may be submitted to different juries for 168 ULTRA VIRES 33 UNDER WHAT LAW ACQUIRED : that in force when contract made 13 , 13 UNDER WHAT LAW ENFORCED : that in force when suit brought 13, 18 UNKNOWN HOLDER OF SECURITIES : must be made party as such .. 153 USE OP MATERIAL : necessity of, for lien 56 discussion of 57-66 VALUE : lien only to that added to realty improved 2 , 109-110 market value, not cost of improvement, governs 109-110 added by payments of owner or mortgagee, for benefit of incum- brance 116 380 Index. VALUE — {Gontimied) : paoe . of laud to be taken at time of contract, to apportion 117 of improvement at time of sale 117 decree must find of both land and improvement 167 of work done, recoverable, where representations fraudulent ... 23, 33 VARIANCE (see Pleading and Pbactice, 145-146, 155). , VENDEE (see Executory Contract). VENDOR (see Executory Contract). VERDICT : advisory only 163 aided by intendment, and when 175 VERIFICATION (see Claim for Lien, 69-70). VESTED RIGHT : none in remedy 13 VOUCHERS : if contract calls for, must be presented 54 payment cannot be demanded unless done 54 if condition precedent, must be complied with 54 if owner refuses to pay without demanding, waived 54 WAIVER AND RELEASE : extension of time between owner and contractor does not release lien. 132 does as to others than owner 115-116 extension of time beyond statutory period, for serving notice . releases as to incumbrancers, purchasers, and creditors 115-116 lien when paid can be released only by owner, not by attorney 129 taking note from owner does not •pri/riia facie release lien 131 if taken as payment, does 181 suing on note does not 131 but must be surrendered and cancelled before decree to enforce lieu allowed 131 same of judgment thereon , 131 release by estoppel 131 acceptance of draft or order on owner no release by sub- contractor, unless taken as payment 133 taking other security releases lien 132 guaranty of note by third party releases 133 taking firm note for debt of one partner releases 133 not if firm ordered improvements or materials 182 assignment of insurance policy, or more efficient security on same property, no release 183 part payment in real estate not 132 accepting dividend in general assignment nott 132 ' appointment of receiver for lienholder is not 133 failing to file claim within four months after final payment due, is release as to all but owner 133 Index. 381 WAIVER AND RELEASE — (CoraimMed): paoe. failure to bring suit within two years after filing claim releases lien as to all 133 failure to bring suit in three months after cause of action accrues by sub-contractor, releases lien I33 failure to bring suit in thirty days after demand releases 133 release for a particular purpose, or to a particular person, no release as to others 133 release to mortgagee, no release as to others 133 release as to particular installment 133 where release names no person or purpose, can be shown for what and whom 133 WHEN LIEN ATTACHES: date when contract is made 3, 82, 111 cases of Ill, 112 of sub-contractor, when original contract made 83 WHEN SUIT MUST BE BROUGHT (see Limitations) 126-138 WHEN SUIT MAY BE BROUGHT 126-128 WHEN SUIT IS BROUGHT : when persons are made parties 127 WHO ENTITLED TO LIENS (see Pbksons Entitled to Liens, 14). WIFE (see Husband and Wipe). WORK: prior to contract, no lien for 21 after rescission of contract, no lien for 35, 51 unless done, no lien 51 if prevented, suit must be for breach of contract 51 after time for completion of contract 54 extra, lien for 53 of sub-contractor, must be pursuant to original contract 87 WORKING TEST : fixes date of completion 48, 50 WRIT OF ERROR: as in other chancery suits 170 WRONGFUL DISCHARGE : contractor can enforce lieu for what done 52, 53 but not for prospective profits, lost by 51 excuses production of architect's certificate 55 WRONGFUL PAYMENTS : those made after notice from sub-contractor 91 or after notice by contractor's statement 91 or, probably, before taking such statement 91, 92 or within twenty days of last day's labor, as to the laborer, if in ex- cess of ninety per cent of contract price 91 , 36