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who is, by his contract, to be paid in money, land, or any specified article of property, if the payment is not made in the manner agreed upon, is entitled to his lien. Where no provision has been made by express agreement, and in the absence of proof to the contrary, the presumption of law is, that payment is to be made on delivery or when the work was completed: and if a petition to enforce the lien aver that materials were to be paid for on delivery, or when the work was finished, evidence that no time was specified for payment would sustain the averment.2

3. Order of Payments.-Liens are to be paid in the order in which the notices are filed.3

4. Collusive Payments.-Where the statute directs the disallowing as against lienors of any payment made by the owner" by collusion, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract," payments made with fraud or collusion cannot be allowed.4

McCullom, 59 N. Y. 367; Walsh v.
Mc Menomy, 74 Cal. 356.

Where the parties to a building contract agree that the superintendent shall pass upon the work and certify as to the payments to be made, his decision is binding unless fraud or mistake on his part shall be shown. McAuley v. Carter, 22 Ill. 53.

So where the contract provided that payments should be made on the certificate of the architect, who was required by the contract, among other things, to certify that all the work of the mechanics, laborers and others employed by the original contractor had been paid, his certificate is conclusive of the rights of all parties concerned unless it can be shown that it was obtained by the owner by collusion or fraud. Dingley v. Greene, 54 Cal. 333.

Plaintiff agreed to erect a house on a lot owned by defendant, for the sum of $1,000, $875 to be paid by defendant, and $125 by one B, for whom the house was intended and to whom the premises were to be conveyed by defendant. Plaintiff erected the house, but B refused to pay the $125 on his part. Defendant tendered the $875 on its part, which seems to have been refused, and plaintiff brought this action to establish a mechanics' lien and an equitable lien upon the premises. Defendant pleaded a tender of $875, and judgment was rendered against plaintiff for costs. Held, that under the contract defendant was liable for $875 only, and that there was nothing outside of the contract to invoke the aid of equity, and that the judgment should be affirmed. Smith

v. Iowa City Loan & Building Assoc., 60 Iowa 164.

1. Doughty v. Devlin, 1 E. D. Smith (N. Y.) 625; Cronk v. Whittaker, E. D. Smith (N. Y.) 647; Parker v. Hall, 14 Phila. (Pa.) 619; Dowdney v. McCullom, 59 N. Y. 367; McMurray v. Brown, 91 U. S. 257.

In an action to foreclose a builder's lien the owner cannot be required to pay in money if in good faith he promised to pay real estate. Kilbourne v. Jennings, 38 Iowa 533.

2. Phil. Mech. L., § 290, citing Brady v. Anderson, 24 Ill. 110; Tipton v. Feitner, 20 N. Y. 423; Pollock v. Ehle, 2 E. D. Smith (N. Y.) 541; Cunningham v. Jones, 3 E. D. Smith (N. Y.) 650; Claycomb v. Cecil, 27 Ill. 497.

3. Kaylor v. O'Connor, 1 E. D. Smith (N. Y.) 672.

4. Post . Campbell, 83 N. Y. 279; Smith v. Coe, 2 Hilton (N. Y.) 365. See Stevens v. Reynolds, 7 N. Y. Supp. 771.

A collusive settlement between the owner and contractor will be disregarded by the court. Smith v. Coe, 2 Hilton (N.Y.) 365.

The mechanics' lien law of 1885 (Laws N. Y. 1885, ch. 342, § 2), which provides that if the owner shall, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract, pay by collusion any money on such contract, and the amount still due shall be insufficient to satisfy the claims, the owners shall be liable to the amount that would have been unpaid had no such payment been made, does not apply, where the owner has

5. Payments in Advance.-Statutes providing against payments in advance are intended to protect the lienor against payments made to the contractor or other persons to the prejudice of the lienor; but where the lienor has himself received the money, he cannot be permitted to dispute the right of the owner to be cred ited with the payment because it was made too soon.1

6. The Owner Entitled to Credit.-Where the contractor fails to comply with his contract, the owner, in a proceeding under the lien law, is entitled to credit for the amount expended in finishing the building, and the sums stipulated in the contract for failures or omissions.2

7. Payment Before Notice. If payment is made to the contractor in good faith before the lien of a subcontractor is filed, it is good payment as against the subcontractor, although, by the terms of the contract, the amount was not then due the subcontractor and did not become due until after the time when the lien notice was filed.3

8. Payments After Notice.-Voluntary payments, made by the owner to the contractor after the subcontractor or workman has filed notice to lien, will not affect or impair the lien or the latter.4

9. Payments on Open Accounts.-Payments made by contractor to material-men must be applied to materials furnished and not to an open accountă.

made a payment in advance without collusion. Lind v. Braender, 7 N. Y. Supp. 664.

1. Post v. Campbell, 83 N. Y. 279. "It is true the words of the statute are that if the owner shall pay any person' by collusion or in advance, and the amount still due the contractor after such payment shall be insufficient to satisfy the demands of the claimants under the lien law, the owner shall be liable for the amount that would be owing to the contractor if no such payment had been made. But in construing the term 'any person,' it must be understood to mean any person other than the claimant. It could not have been intended that after having received the money himself, as a payment upon the contract, the claimant should be allowed to claim the same instalment." RAPALLO, J., in Post v. Campbell, 83 N. Y. 279, 284.

In Louisiana, the owner of a building, being erected under a contract, has no right to pay the contractor in anticipation of the term stipulated in the contract; if he does so, he renders himself liable to the claims of material-men,

workmen, etc., who have given hirm the requisite notice before the time expired. Jorda v. Gobet, 5 La. An. 431; Baldwin . Wood, 11 La. O. S. 284; Foucher v. Day, 6 La. O. S. 60. See Offutt v. Scribner, 10 La. O. S. 639.

2. Gillen 7. Hubbard, 2 Hilt. 303. And see Smith v. Ferris, 1 Daly (N. Y.) 18.

3. Schneider v. Hobein, 41 How. (N. Y.) 232; Lynch v. Cushman, 3 E. D. Smith (N. Y.) 660; Thompson v. Yates, 28 How. (N. Y.) Pr. 142; Smith v. Coe, 2 Hillt. (N. Y.) 365.

Under the act of 1851, the owner cannot be compelled to pay (including all voluntary payments made in good faith, according to the terms of his contract, before the notice of claim is filed) any greater amount than the the contract price. Doughty v. Devlin, 1 E. D. Smith (N. Y.) 625.

4. Schneider v. Hobein, 41 How. (N. Y.) Pr. 232; Carman v. McIncrow, 13 N. Y. 73; McBurney v. Bradbury, 6 La. An. 39; St. Louis Nat. Stock Yards v. O'Reilly, 85 Ill. 546; Walsh v. McMenomy, 74 Cal. 356.

5. Goss v. Streletz, 54 Cal. 640.

10. Payment Out of Funds Deposited.-A lienor must establish his lien before he can demand money deposited with the county clerk to remove liens upon the property.1

11. Set-off. The claimant's lien cannot be reduced by any setoff which the owner may have had against the builder when the attested account was served, but only by payments previously made in good faith. So where, in pursuance of a mutual understanding, the contractor receives credit for the amount of a debt due him, such crediting is equivalent to a payment, and when made in good faith before the notice of claim is filed, it pro tanto discharges the owner from liability.3 But in such cases, if there is fraud, collusion or intent to evade the act, these settlements will not avail the owner as a defence.4

X. MARSHALLING OF MECHANICS' LIENS.-The equitable doctrine of marshalling of securities applies to mechanics liens.5

1. People v. Butler, 61 How. (N. Y.) Pr. 274.

Payment of money to the county clerk by the owner (under Stat. 1851, 11) has no other effect than to reclaim the land from the lien; to establish a right to the possession of the money, the plaintiff must prosecute his claim before the court. Dunning v. Clark, 2 E. D. Smith (N. Y.) 535

2. Hoyt v. Minor, 7 Hill (N. Y.) 525. See Miller v. Moore, 1 E. D. Smith (N. Y.) 739Compare Edleman v. Kidd, 65 Wis. 18; Dore v. Sellers, 27 Cal. 588.

In Owens v. Ackerson, 1 E. D. Smith (N. Y.) 691, it is held that the owner may set off a claim against the contractor arising out of other matters than those connected with the contract.

3. Phil. Mech. L., § 292; Allen v. Carman, 1 E. D. Smith (N. Y.) 692; Haswell v. Goodchild, 12 Wend. (N. Y.) 373, 375. See Grogan v McMahon, 4 E. D. Smith (N. Y.) 754; s. c., 6 Abb. Pr. (N. Y.) 306.

4. Haswell v. Goodchild, 12 Wend. (N. Y.) 373: Schneider υ. Hobein, 41 How. (N. Y.) Pr. 232; Lynch 7. Cushman, 3 E. D. Smith (N. Y.)

660.

5. Phil. Mech. L., § 257; Rust v. Chisolm, 57 Md. 376.

"Where a part of an old building erected on one lot was torn down, and a building was erected adjoining and opening thereto on another lot, the court directed in a proceeding to distribute the proceeds of sale of all the property, that two mortgages, which

were given on the lot previously to the commencement of the new building, should be paid out of the proceeds of the first lot, leaving the value of the second lot and the building thereon to satisfy the mechanics' lien creditors. Olympic Theatre, 2 Browne (Pa.) 275So where on the 2nd October, 1867, H leased to S two lots of ground in B, one on the corner of McHenry and Sterrett streets, and the other on the west side of Sterrett street, and on the same day S executed to H a mortgage of the same lots to secure an existing indebtedness and advances to be made, to enable S to erect certain houses on the Sterrett street lot. The advances were made and the houses erected. On the 21st of February, 1868, S executed to H another mortgage on the same lots to secure a further indebtedness. Between the recording of the two mortgages certain material-men filed their claims against the Sterrett street lot. By proceedings in equity the property was sold, but the proceeds were insufficient to pay the claims of the material-men and the two mortgages. The proceeds of the McHenry street lot were sufficient to pay the whole of the first mortgage of H and part of the second, while the proceeds of the Sterrett street lot were insufficient to pay the claims of the material-men. Upon the question of the proper distribution of the fund between the respective claimants, it was held that the doctrine of the mar shalling of securities applied and the material-men were entitled to the proceeds of the Sterrett street lot on which alone they had a lien, while the pro

XI. APPORTIONMENT.- Where the statute authorizes the filing of a joint lien for work upon separate buildings and upon distinct lots of land, the lien must be apportioned among the several buildings, and the amount specifically designated.'

1. Rule of Apportionment. The rule for adjusting the different rights of parties holding separate liens upon property, which is sought to be subjected to the payment of a mechanics' lien, is that an encumbrance anterior to the mechanics' lien takes priority over it to the extent of the value of the property at the time

ceeds of the McHenry street lot street, the liens were properly aponly were applicable to the payment portioned. Kline's Appeal, 93 Pa. St. of the mortgage claims. Hamilton v. Schwehr, 34 Md. 107." Phil. Mech. L., § 258.

1. Donahoo v. Scott, 12 Pa. St. 45; Bank of Pittsburgh's Appeal, 29 Pa. St. 330; The Okisko Co. v. Mathews, 3 Md. 168. See Thorn v. Shaw, 5 Leg. & Ins. Rep. (Pa.) 19; Boyd v. Mole, 9 Phila. (Pa.) 118.

Where the owner of a single lot of ground erects thirty-two houses thereon sixteen of them fronting on one street, and the residue on another, parallel therewith, the curtilages adjoining each other, respectively, they are the subject of an apportioned claim. Taylor v. Montgomery, 20 Pa. St. 443. See Fitzpatrick v. Allen, So Pa. St.

292.

Where G, the owner of three adjoining lots, contracted with D & C to erect a house on each of said lots, the contract being entire, in an action to enforce a mechanics' lien thereon; held, that the cost and expense of erecting all the houses would be apportioned among the lots according to the value of the labor and materials expended on each. Doolittle v. Pleuz, 16 Neb. 153.

A tract of land was divided by its owner into ten building lots fronting on a street. On these lots ten houses were built, two houses adjoining each other, making five blocks of two houses, each house having a side yard. Between two of these blocks an additional space of sixty feet was left, intended for a street. Mechanics' liens were filed against the whole row, which were apportioned among the ten houses. It was objected that the liens could not be so apportioned because of their separation by this sixty feet space. Held, that the rights of the mechanics, with reference to apportionment, were to be determined by the time when the work was commenced, and as the space had not then been dedicated as a public

422.

A lien claim filed upon separate buildings and upon distinct lots of land without apportioning the claim and designating specifically the amount claimed on each, is not a compliance with the statute, and must be postponed to the claims of other encumbrancers. Morris Canal Co. v. Rockaway etc. Co., 16 N. J. Eq. 150.

Where a mechanics' claim is filed against a mansion house, barn, wagonhouse, etc., on one farm, to which they are all appurtenant, and are intended to be occupied and used together, there is no necessity for an apportionment of the claim among the several buildings. Lauman's Appeal, 8 Pa. St. 473.

A person erected several houses at one time on one lot, half of which fronted on one street and the other half on a parallel street, the yards of the buildings adjoining each other respectively. Held, that they were the subject of an apportioned lien. Tavlor v. Montgomery, 20 Penn. (8 Harris) 443; Goldheim v. Clark (Md.), 13 Atl. Rep. 363.

Where a bank held an assignment of a mechanics' lien against three lots of land, with buildings thereon, for $3.000 each, to secure a debt due it for $5.756, and, the buildings on one of the lots having been sold without any claim by the bank on the proceeds, they having been distributed to other lien creditors, subsequently another lot and building were sold and the proceeds were in court for distribution. it was held that the neglect of the bank to claim the proceeds of the sale of the first lot, did not impair its right to have its debt out of the other remaining lots to the extent of its lien upon each particular lot nor prevent it from claiming its entire debt out of the proceeds of the sale of the remaining lots, since it was less than the lien security upon such lots; that the

the mechanics' lien attached and the mechanics' lien priority over the mortgage only to the extent of the additional value given to the property by the improvements.1

All payments of money made by the contractor to the plaintiffs or their executor on general account, or the application of which were not made by him, and which were received after the first delivery for defendant's building, should be apportioned between the several accounts of plaintiffs for lumber by them furnished for the several buildings of the said contractor then in course of construction, in proportion to the amount due and remaining unpaid for each at the time of each such payment.2 Lien of subcontractors, etc., cannot be affected by apportionment of job among cocontractors with verbal assent of employer.3

4

XII. ASSIGNMENT OF LIEN.-The rule relating to the assignability of mechanics' liens is not well established. The weight of authority, however, is in favor of the assignability of the lien of a mechanic, and the right of his assignee to assert his claim in the same manner and to the same extent that the mechanic could.5

lien, not the debt due the bank, was apportioned upon the lots and buildings. Appeal of the Bank of Pittsburgh, 29 Pa. St. 330.

A mechanics' lien filed against several buildings, all situate on a farm of about three acres, for labor and materials furnished in erection of some buildings and repair of others, all the buildings being intended to be occupied and used together, is good without apportionment of claims among the several buildings. Griel's Appeal (Pa.), S Cent. 868; 9 Atl. 861.

1. Croskey v. Northwestern Mfg. Co., 48 Ill. 481; Howett v. Selby, 54 Ill. 151; Dingledine v. Hershman, 53 Ill. 280.

2. Ballou v. Black, 17 Neb. 389. 3. Davis v. Livingston, 29 Cal. 283, 284.

4. Tuttle v. Howe, 14 Minn. 145; Ritter 71. Stevenson, 7 Cal. 388; Chicago etc. R. Co. v. Sturgis, 44 Mich. 538; Austin etc. R. Co. v. Rucker, 59 Tex. 587; 12 Am. & Eng. R. Cas. 259; Murphy v. Adams, 71 Me. 113; Brown v. Harper, 4 Oreg. 90; Mason v. Germaine, I Mont. 263; Smith v. Bailey, 8 Daly (N. Y.) 128; Kerr v. Moore, 54 Miss. 286; Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219, 221; Busfield v. Wheeler, 14 Allen (Mass.) 139; First Nat. Bank of Decorah v. Day Brothers, 52 Iowa 680; Merchant v. Ottumwa Water Power Co., 54 Iowa 451; Iaege v. Bossieux, 15

Gratt. (Va.) 83; Rogers v. Omaha Hotel Co., 4 Neb. 54; German Bank v. Schloth, 59 Iowa 316; Farwell v. Grier, 38 Iowa 83; overruling Scott v. Ward, 4 Greene (Iowa) 112. Contra, see Dana v. Mississippi etc. R. Co., 27 Ark. 564; Cairo & Vincennes R. Co. v. Fackney,. 78 Ill. 116; Caldwell v. Lawrence, 10 Wis. 331; Ruggles v. Walker, 34 Vt. 468. It is not assignable before action. Tewksbury Bronson, 48 Wis. 581; Rollin v. Čross, 45 N. Y. 766; St. John v. Hall, 41 Conn. 522.

v.

The mechanics' lien created by the statute of Michigan is personal to the contractor or subcontractor, and is not assignable. 1870. Fitzgerald v. First Presbyterian Church, 1 Mich. (N. P.) 243.

A mechanics' lien can only be assigned in writing. Ritter v. Stevenson, 7 Cal. 388.

The lien is purely a personal privilege, and cannot be sold or transferred. Ruggles v. Walker, 34 Vt. 468.

5. Murphy v. Adams, 71 Me. 113, 118; Kerr v. Moore, 54 Miss. 286; Ritter v. Stevenson, 7 Cal. 388; First Nat. Bank of Decorah v. Day Brothers, 52 Iowa 680; Merchant . Ottumwa Water Co., 54 Iowa 451; Busfield v. Wheeler, 14 Allen (Mass.) 139; Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219, 221; Brown v. Harper, 4 Oreg. 90; Austin etc. R. Co. v. Rucker, 59 Tex. 587; 12 Am. & Eng.

Cas. 259;

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