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authorities, at least, bears out this proposition, although it was formerly held, in some of the States, that the assignment of the debt would not operate to defeat the right of lien, in favor of the assignee of the account for the work performed or materials furnished.1 But though it is perhaps the settled rule of law that an assignment of the debt will defeat the right of lien, the mere giving of an order by the laborer to another on his employer, for the amount of his debt for which the lien would obtain, would not defeat the right of lien, for this could not be construed as an assignment of the personal right to file the lien, but is rather in the nature of a demand, through another, for the amount of money owing to the laborer. A distinction is also recognized by the courts between an assignment of the debt, before the filing of the lien, and an assignment made after the filing of the lien by the laborer who performed the work,3 and although the lien is defeated by an assignment made before the filing of the lien, an assignment made after the filing of the lien has been held not to impair the right of lien and the assignee of the debt secured by the lien, being subrogated by the assignment to the rights possessed by his assignor, can still enforce the payment of his debt by the enforcement of the lien. 4

1 De Witt v. Smith, 63 Mo. 263; Jones v. Hurst, 67 Mo. 568; Morgan v. Railroad, 76 Mo. 161. See also Skyrme v. Occidental &c. Co., 8 Nev. 219, and Capron v. Sprout, 11 Nev. 304.

2 Hinsley v. Buchanan, 5 Watts (Pa.), 118; Dane v. Clinton, 2 Utah, 417; Fisher v. Rush. 71 Pa. St. 40; Bashor v. Nordyke & Mormon Co., 25 Kan. 155; Gore v. Cushing, 5 Bush (Ky.), 304.

3 Goff v. Papin, 34 Mo. 177; Ashdown v. Woods, 31 Mo. 465. Assignee of claims may file lien under Iowa statute. Mitchell v. Burwell, 81 N. W. Rep. 193.

4 See Jones v. Hurst, 67 Mo. 568, where the assignee in addition to the right of lien held an accepted draft covering the same debt, Hough, J., observing " After the lien was filed, therefore, Embree as assignee of

§ 582. Time for filing lien. - The time within which a lien must be filed for work done, or materials furnished, is to be computed from the time when the work was completed, or the date when the materials were furnished, under the contract. The notice of intention to file the lien can be filed at the same time as the lien account, if it is done before the commencement of the suit,2 and the lien must always be filed within the proper statutory period, commencing at the time when the last work was performed, or the last materials were furnished under the contract, and extending to the time of filing the lien.3 The lien can be filed within any time during the statutory period, but if it is not filed within the time allowed by statute, the lienor has waived his right to claim the lien. But where the work is performed on different structures on the same

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the debt secured by the lien had an unquestionable right to enforce the lien in his own name; also McMurray v. Taylor. 80 Mo. 263. "Where miners were employed in working a developed mine, running tunnels, cross-cuts, winzes, etc., sometimes being paid by the day, and sometimes taking small contracts for particular parts of the work at so much per foot: Held, that they were not required to file a lien separately for each period of days' labor and each contract of the kind referred to, but that the whole would be considered as a continuous employment, from the final termination of which only the limitation for filing a miners' lien wouid begin to run. Skyrme v. Occidental Mill &

M. Co., 8 Nev. 220: M. M. D. 211.

1 Sparks v. Butte Gravel Min. Co., 55 Cal. 389; Dingley v. Green, 54 Cal. 333; Bartlett v. Kingon, 19 Pa. St. 341; Catlin v. Douglass, 33 Fed. Rep. 569; Conroy v. Perry, 26 Kan. 472.

2 The time for giving notice is purely statutory. See Stimp. Am. Stat., § 1967. It must be served on the owner or his agent. Malone v. Big Flat Gravel Co., 76 Cal. 578. As to sufficiency of notice, see Cal. Powder Works v. Con. Hy. G. Mines (Cal.), 22 Pac. Rep. 391.

3 Ante, idem.

4 Welch v. Porter & Co., 63 Ala. 225; Mulloy v. Lawrence, 31 Mo. 583. It is a question of fact whether the lien is filed in time or not. Driesbach v. Keller, 2 Pa. St. 77.

5 Patrick v. Foulke, 45 Mo. 312; Brown v. Moore, 26 Ill. 421.

tract of land, and under one continuous employment, the time is to be computed from the date when the whole work was completed,1 and where the work is not done under one continuous contract, but is performed under different employments, the lien in such cases is held to be divisible, and if an account is filed within the statutory period for part of the work done, the lien will attach to the property for the work performed within that time, but not for work previously done.2

It must ordi

§ 583. Character of work necessary. narily appear that the work for which the lien is filed was performed under one and the same employment,3 and that the statutory period has not elapsed, intervening the completion of the work for which the lien is claimed, and the time at which he claimed his right of lien.* It is not necessary to file separate liens, however, for work done under separate contracts, if the same was performed under one continuous employment and upon the same property, and when one lien is filed for work done under separate contracts, if the work is for the same employment, the time within which the laborer must file his lien will not begin to run until the final completion of the work performed on the last contract. But while one can claim under one lien for all the work performed under one continuous employment, on the same parcel of property, a

1 Silvester v. Cal. Quartz Min. Co., 80 Cal. 510; 22 Pac. Rep. 217.

2 Gurney v. Walsham (R. I.), 19 Atl. Rep. 323.

3 Mellior v. Valentine, 3 Colo. 255; Hafer's App., 116 Pa. St. 360.

4 Sanford v. Frost, 41 Conn. 617. If additional work is done at owner's request, this would extend time for filing the lien. McAntire v. Trautner, 63 Cal. 420; Harman's App., 124 Pa. St. 624.

5 Skyrme v. Occidental &c. Co., 8 Nev. 219; Capron v. Sprout, 11 Nev.

6 Ante, idem.

laborer cannot claim under one lien for work performed on different parcels of property, even though the work was performed on the different parcels of property under the same contract and one continuous employment.1

§ 584. Character of owner's title. The laborer must generally proceed against the party who holds the legal title to the property against which the lien is filed, and all should be made parties to the suit who are interested in the property, or whose rights would be, in any way, affected by the enforcement of the lien; 2 but the mere fact that a part of the title to the property to be charged is in others than the party sued, will not defeat the lien as against the party who is sued, and if the party who is sued really possesses the legal title to the property his liability will not be affected by the mere fact that he only holds the legal title as trustee for his partners, for the fact of ownership by the other members of the firm does not affect the liability of the party who was sued. and the laborer can

1 Davis v. Alvord, 94 U. S. 545; reversing Alvord v. Hendrie, 2 Mont. 115; Wade's Am. Min. Laws, p. 223. Items for extra work may be included if the contract stipulates for extra work. Pullis v. Happom, 28 M. A. 666; Rush v. Able, 90 Pa. St. 153; Murray v. Barrow, 11 Allen (Mass.), 152. And if such work is substituted for work done under the contract it will have the effect of extending the time for filing the lien. McKelvey v. Jarvis, 87 Pa. St. 414.

2 Hooper v. Flood, 54 Cal. 218; Clark v. Brown, 22 Mo. 140; Giant Powder Co. v. San Diego Flume Co., 78 Cal. 193; Foster v. Woolfing, 20 Mo. 85; Sullivan v. Deeker, 1 E. D. Smith (N. Y.), 699.

3 Brown v. Wright, 25 Mo. App. 54.

Clark v. Morning, 4 Ill. App. 649. But both the trustee and cestui que trust should be made parties. Bayard v. McGraw, 1 Ill. App. 134; 96 Id. 147; 6 Ill. App. 621. Lien will not lie for work done for a trespasser, against owner's property. Idaho G. M. Co. v. Winchell (Idaho), 59 Pac. Rep. 533. No lien will lie for labor or materials furnished purchaser in possession under contract to purchase mine. Maher v. Schull, 11 Colo. App. 322; 52 Pac. Rep. 1115.

recover as against the holder of the legal title, even though he had knowledge of the trust.1 Nor would the rights of a laborer upon a claim be affected by the fact that the property had not, at the time of filing the lien, been transferred by patent from the government to the claimant.2 The lien would obtain just as though he had a fee-simple title to the land, and it is immaterial, so far as the lienor's rights are concerned, whether the owner has a patent from the government, or whether he holds under one of the old Spanish grants, he can still exercise his right of lien given him by the statute.

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§ 585. Same Against lessee. Notwithstanding a lessee, at the end of his term, or on forfeiture, can remove machinery and improvements erected by him, while annexed to the land, they constitute such a portion of the estate as to be subject to a laborer's or materialman's lien,* and upon a judgment for such a debt, the estate of the lessee and the improvements erected by him upon the land could be sold under execution.5

1 Rosina v. Trowbridge, 20 Neb. 105; 17 Pac. Rep. 751.

2 Cal. Code Civil Proc., § 1183.

3 Bewick v. Minn., 83 Cal. 368; 23 Pac. Rep. 389.

4 Dobschuetz v. Holliday, 6 M. M. R. 108; Rogers v. Mining Co., 75 Mo. App. 114. Under Colorado lien law no lien will lie against a leasehold to a mine. Laws Colo. 1895, p. 202; Morrell Hdw. Co. v. Princess Gold Min. Co., 63 Pac. Rep. 807.

5 The right to file lien against leasehold is recognized in Rogers v. Mining Co., 75 Mo. App. 114, a well-considered opinion by Judge Bland. Mitchell v. Burwell, 110 Iowa, 10; Post v. Fleming (N. M.), 62 Pac. Rep. 1087; Gardner v. Resumption Co., 4 Colo. App. 271. But see United Mines Co. v. Hatcher, 49 U. S. App. 139; Pelton v. Minah Con. Co., 11 Mont. 281; 20 Am. & Eng. Enc. Law (2 Ed.), 792; Griffin v. Hurley (Ariz. 1901), 65 Pac. Rep. 147; Reese v. G. M. Co., 133 Cal. 285. A lessor's estate cannot be charged for materials or labor furnished a lessee, although mill or mining plant on premises erected by lessee were to become the lessor's property, at the end of the term. Antlers Park Mining Co. v. Cunningham (Colo. 1902), 68 Pac. Rep. 226.

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