time for the commencement of suit after filing the account under a mechanics' lien, which was in force at the time of beginning suit, must prevail over the law of limitation which existed at the time of filing the account.1 14. Continuance of Lien.--After the original contract has been made the time of payment cannot be extended and the lien continued.2 The inchoate lien created by the filing of the claim, pro Under the New York act of 1863, the lien ceases after one year from the time of filing notice of the claim, unless by an order of the court, obtained before the expiration of the year, the lien is continued, and a new docket made, though proceedings may have been commenced within the year. Mathews v. Daley, 3 Daly (N. Y.) 214 n.; s. c., 33 How. Pr. (N. Y.) 382; Stone v. Smith, 3 Daly (N. Y.) 213; Barton v. Herman, 3 Daly (N. Y.) 320; O'Donnell v. Rosenberg, 14 Abb, Pr., N. S. (N. Y.) 59; s. c., 4 Daly 555. New York City.-Under the lien law for the city of New York (Stat. 1844, p. 339), a mechanics' lien is limited in its duration to one year from the time of its commencement, and the recovery of a judgment thereon against the owner of the property, before the end of the year, will not continue it in force beyond the expiration of that time. Freeman v. Cram, 3 Comst. (N. Y.) 305. See Grant 7. Vandercock, 57 Barb. (N. Y.) 165; People v. Lamb, 3 Lans. (N. Y.) 134; Huxford v. Bogardus, 40 How. Pr. (N. Y.) 94. Tennessee. A mechanic who builds a house or furnishes the materials therefor in Tennessee must commence proceedings to give effect to his lien, within twelve months, if the house be in any town, and within six months if it be in the country. Furguson v. Ellis, 6 Humph. (Tenn.) 268. West Virginia.-Ina suit to enforce a mechanics' lien, if it appears upon the face of the bill that the suit was not brought within six months from the time plaintiff filed his account with the clerk, as required by the statute, the bill should be dismissed upon demurrer thereto. Phillips v. Roberts, 26 W. Va. 783. In Wisconsin, where building materials are furnished at different times, under one contract, the proceedings to enforce the lien are in time, if begun within one year of the last act of furnishing under the contract. Fowler v. Bailey, 14 Wis. 125. Rhode Island.-For all the work done under a single contract or request, the contractor is entitled to but one indivisible lien, and must file his notice within six months after the commencement of the work, or the lien is entirely lost; but, when work is done under several contracts or requests, each separate job is entitled to a separate lien, or the lien is divisible, so that where notice has been filed embracing an account for work extending back more than six months, that portion of the work which has been done within the six months will be protected, and the portion done prior to that time will be unprotected. Sweet v. James, 2 R. I. 270. Virginia.-Under the mechanics' lien law a party may come into equity to enforce his lien as soon as the first instalment becomes due, and thereupon the court will make provision for future instalments, without requiring a supplemental bill as each becomes due. Iaege v. Bossieux, 15 Gratt. (Va.) 83. 1. Forcht v. Short, 45 Mo. 377. 2. Jones v. Alexander, 10 S. & M. (Miss.) 627; Isaac v. Swift, 10 Cal. 71. It requires express words of the statute to continue a lien beyond the time specified. Isaac v. Swift, 10 Cal. 71. And it seems that the lien can exist only according to the provisions of the statute, and that the agreement of the parties cannot operate to continue it in force for a longer period than is prescribed therein. Veetman v. Thompson, 3 Comst. (N. Y.) 438. If, after a contract for building a house and structures connected therewith has been substantially performed, and a bill rendered for the work done under the same, further work is done. which the proper performance of the contract calls for, and not for the purpose of fixing a later date from which to compute the time allowed by statute for filing a statement to enforce a mechanics' lien, the time of performing such further labor may be taken as such date. Hubbard υ. Brown, 8 Allen (Mass.) 590. Illinois.-Under the Illinois me ceedings to enforce the lien having. been commenced before the expiration of the time prescribed by statute, and no entry discharging it having been made by the clerk, continues after the expiration of the time and until judgment. And where the act provides that the lien shall continue "until judgment is rendered," a final judgment is meant.2 15. Action Prematurely Brought.-Where an action to foreclose a lien for materials furnished for building is prematurely brought, and the judgment is rendered in the case against the plaintiff for that reason, such judgment is not a bar to another action brought subsequently and within proper time against the same parties to foreclose the same lien.3 16. Attachment.-An attachment to enforce a mechanics' lien, being in aid merely of the ordinary remedy by suit, must follow it, and must be issued from the same court which has jurisdiction of the plaintiff's demand, conforming, at the same time, to the usual conditions as to the affidavit, bond, etc., on which the attachment is issued. If the debtor's interest be realty, it must be attached as such; and be attached as personalty when it is personalty; the same distinction, as to the mode of attachment, to be preserved as in ordinary suits.5 17. Amendment of Process.-Defective process issuing upon a complete affidavit of foreclosure may be amended and made to conform to the affidavit; but the affidavit of foreclosure cannot be amended." 18. Appointment of Receiver.-In an action to foreclose a mechanics' lien, a receiver cannot be appointed, pendente lite. chanics' lien law of 1861, the lien will continue if the materials are furnished after the stipulated time, provided the delivery is completed within one year from the time of commencing their delivery. Baxter v. Hutchings, 49 Ill. 116. 1. Paine v. Bonney, 4 E. D. Smith (N. Y.) 734. 2. Haag v. Hillemeier, 41 Hun (N. Y.) 390. 3. Seaton v. Hixon & Co., 663. 35 Kan. 4. Brown v. Brown, 2 Sneed (Tenn.) 431; Parmenter v. Childs, 12 Iowa 22. The lien for materials furnished for a building without any special contract with the owner, is enforced by attachment against the property either at law or in equity, making the owner a party. Stat. 1846; § 118; Shelby v. Hicks, 5 Sneed (Tenn.) 197. Such an attachment is auxiliary and collateral to the original process, which compels the appearance of the defendant. He must have a day in court to make his defence, for the matter in con test is the justice of the plaintiff's de- Upon a bill filed to enforce a mechanics' lien on a leasehold interest in land and on a building, machinery and fixtures thereupon, the sheriff levied an attachment without going upon the land, premises, or taking possession of any part of the property. Held, that the attachment was valid. Barr v. Graves, 4 Lea (Tenn.) 552. Property Seized by Marshal.-A mechanics' lien cannot be enforced in a state court where the premises have been seized by the marshal under forfeiture proceedings before the claim has been filed. Heidritter v. Elizabeth Oilc.oth Co., 6 Fed. Rep. 138. 5. Dustin v. Crosby, 75 Me. 75 6. Cumming v. Wright, 72 Ga. 767. 7. Meyer v. Seebald, 11 Abb. Pr., N. S. (N. Y.) 326. 19. Release. The holder of a judgment on a lien claim upon a building erected on premises covered by a mortgage is not entitled to the benefit of a release, made after the commencement of the building, or other land embraced in the mortgage, unless the mortgagee knew of the claim when he executed the release and acted in bad faith. His knowledge that the building was in progress is sufficient therefor.1 XVI. NOTICE AND CLAIM.-To entitle one who performs labor for a contractor to the benefit of a lien, he must give notice of his claim in some way to the owner of the property before he has paid the contractor in full for the building or improvements which the contractor is employed to construct.2 The statutes in many of the States makes the giving of notice to the party named as owner essential to the lien,3 and the failure υ. 1. Ward v. Hague, 25 N. J. Eq. 397. 2. Seibs v. Engelhardt, 78 Ala. 50S; Weithoff v. Murray, 76 Cal. 508; Sens v. Trentune. 54 Tex. 218; Brown v. Crump, 2 Swan (Tenn.) 531; Patrick v. Ballentine, 22 Mo. 143; Schubert v. Crowley, 33 Mo. 564; Walker v. HaussHigo, Cal. 183; Shaver v. Murdoch, 36 Cal. 293; Ombony v. Jones, 21 Barb. (N. Y.) 520; Kenly v. Sisters of Charity, 63 Md. 306; Robinson v. Marney, 5 Blackf. (Ind.) 329; Pifer v. Ward, 8 Blackf. (Ind.) 252; Goble v. Gale. 7 Blackf. (Ind.)_218; Thomas v. Kiblinger, 77 Ind. 85; Falconer Frazier, 15 Miss. 235; Greeley S. L. & Pac. R. Co. v. Harris (Colo.), 20 Pac. Rep. 764; Schmidt v. Gilson, 14 Wis. 514; Eastman v. Newman, 59 N. H. 581; Bell v. Vanderbilt, 12 Daly (N.Y.) 467; Crawfordsville v. Brundage, 57 Ind. 262; Henry v. Bunker, 22 Mo. App. 650; Whipple v. Christian, 80 N. Y. 523; Donaldson v. O'Conner, 1 E. D. Smith (N. Y.) 695; Neeley v. Searight, 113 Ind. 316; Kezartee v. Marks, 15 Oreg. 529; Kinney v. Blackmer, 55 Conn. 261; Danziger v. Simonson (N. Y.), 22 N. E. Rep. 570; Jarden v. Pumphrey, 36 Md. 361; Heltzell v. Hynes, 35 Mo. 482; Kreilich v. Klein, 10 Phila. (Pa.) 486; Speilman v. Shook, 11 Mo. 340; Wehr v. Shryock & Clark, 55 Md. 334; Hess v. Poultney, 10 Md. 257; Thomas v. Barber, 10 Md. 380; Prescott v. Maxwell, 48 Ill. 82. The subcontractor's lien of Stat. of 1862, p. 384, is controlled by the terms of the original contract between the original contractor and the property owner. Of its terms, such subcontractors, laborers and material-men are presumed to have notice, and their lien rights cannot be divested or impaired by any subsequent agreement between the owner and contractor without timely notice to, or consent of, such third parties. Shaver v. Murdoch, 36 Cal. 293; Soule v. Dawes, 7 Cal. 575. There need be no contract between the owner of a house and a subcontractor to give the latter a lien. He has only to give the notice required by the statute after doing the work. Urin v. Waugh, 11 Mo. 412. A journeyman in whose favor a lien may be created, must give notice to the owner or proprietor of the lot on which the building is to be, or has been, erected as the statute provides. If he neglects to do so until the owner pay to the undertaker the price stipulated to be paid for the building, etc., then the lien is defeated. Brown v. Crump, 2 Swan (Tenn.) 531. Under Md. Stat. 1842, ch. 183, and Stat. 1846, ch. 290, a material-man is not required to notify the owner of a building that he has supplied the contractor before payment to the contractor. Shoop v. Powles, 13 Md. 304. 'In California, subcontractors, laborers and material-men not employed by owner have a lien only from service of notice upon owner. Cahoon 7. Levy, 6 Cal. 295; Brennan v. Marsh, 10 Cal. 435; McAlpin v. Duncan, 16 Cal. 127. 3. Neeley v. Searight, 113 Ind. 316; Kenly v. Sisters of Charity, 63 Md. 306; Kezartee v. Marks, 15 Oreg. 529; Kumly v. Blackmer, 55 Conn. 262; Whipple v. Christian, 80 N. Y. 523; Henry v. Bunker, 22 Mo. App. 650; Eastman v. Newman, 59 N. H. 581. But see Shoop v. Powles, 13 Md. 304. to give it in substance as the law provides is fatal to the claim.1 If the notice is not served until after the expiration of the time prescribed by statute, it can only operate to prevent the payment of whatever sum may at that time remain due from the owner.2 Payment to the contractor according to the contract before service of notice discharges the owner from liability. So if the contractor abandon his contract, after being paid in full for all work performed under it, a mechanic can obtain no lien, by reason of the employment of another person to complete the building.4 Where a subcontractor furnishes materials to the contractor, and gives notice to the owner, and the owner makes payments to the contractor after notice, the rights of the subcontractor to a A man furnishing materials to a contractor to build a house, and not filing his notice of lien until after the last payment on the contract was due and made, although it was within six months after furnishing the materials, cannot recover against the owner. Carman v. McIncrow, 3 Kernan (N. Y.) 70. 1. Wehr v. Shryock, 55 Md. 334; Thomas v. Barber, 10 Md. 380; Hess v. Poultney, 10 Md. 257; Carrol v. Caughlin, 7 Abb. (N. Y.) Pr., N. S. 72; Havighorst v. Lindberg, 67 III. 463. Where, therefore, a material-man sought to acquire a lien in 1866, upon premises in Canandaigua, one of the villages specified in the act of 1844, but not in a county specified in the act of 1854, by filing his claim in the office of the town clerk of Canandaigua, as required in the act of 1854, instead of in the office of the clerk of the county of Ontario, in which said village is situated, as prescribed by the act of 1844; held that the notice was ineffectual, and that plaintiff acquired no lien. Whipple v. Christian, So N. Y. 523. 2. Robinson 7. State Ins. Co., 55 Iowa 489; Knowles v. Joost, 13 Cal. 620; McAlpin v. Duncan, 16 Cal. 127; Dore v. Sellers, 27 Cal. 588; Davis v. Livingston, 29 Cal. 283; Blythe v. Poultney, 31 Cal. 234; Henley .Wadsworth, 38 Cal. 356; Kenton v. Conley, 49 Cal. 185; Wells v. Cahn, 51 Cal. 423; Dingley v. Greene, 54 Cal. 333; Whittier . Hollister, 64 Cal. 283; O'Donnell v. Kramer, 65 Cal. 353; Wilson v. Barnard, 67 Cal. 422, 423; Craig . Smith, 37 N. J. L. 549; Jensen v. Brown, 2 Colo. 694; Clough v. McDonald, 18 Kan. 114. Where a subcontractor furnishes to the principal contractor materials for a house, and duly files his claim for a mechanics' lien, and gives notice there of to the owner within thirty days after the last of the materials are furnished, but, at the time of the service of the notice, the owner has paid the principal contractor in full, pursuant to the terms of his contract, the lien will be enforced, provided the owner had actual notice of the facts out of which grew the subcontractor's claim. In the absence of any such notice, payment in good faith to the principal contractor, pursuant to the terms of the contract, will defeat the lien. See Stewart v. Wright, 52 Iowa 335; Winter v. Hudson, 54 Iowa 336; Andrews v. Burdick, 62 Iowa 714. 3. McAlpin v. Duncan, 16 Cal. 127; Benton v. Conley, 49 Cal. 185; State v. Deblieux, 25 La. An. 59; Crane v. Genin, 60 N. Y. 127; Biggs v. Clapp, 74 Ill. 335. See Quale v. Moon, 48 Cal. 478. Where one contracted to furnish the materials and build a house and deliver it free from all liens of material men, and gave a bond to that effect with sureties, but after partially erecting the building, and when indebted to the owner for over payment, assigned the contract to one of his sureties, who completed the building and received the payment for the work done after the assignment; held that the owner was not rendered liable to one who had furnished materials to the building before the assignment, because a notice that he would be held responsible was served upon him after he had overpaid the original contractor. Raleigh Tossettel, 36 Ind. 2 5. 4. Allen v. Carman, 1 E. D. Smith (N. Y.) 692; Spalding . King, 1 E. D. Smith (N. Y.) 717; s. c., 12 N. Y, Leg. Obs. 186; Linn v. O'Hara, 2 E. D. Smith (N. Y.) 560; s. c., 1 Abb. Pr. (N. Y.) 360. lien is not affected thereby. Where the owner makes a voluntary payment in good faith to the contractor, before the lien of a subcontractor is filed, it is a good payment as against the subcontractor, although, by the terms of the contract, the amount was not then due until after the time when the lien notice was filed. But no voluntary payment, made by the owner to the contractor after the subcontractor or workman has filed his notice, can in any wise affect or impair the lien of the latter.2 Where the statutes require that a contractor should signify his assent or dissent to the owner within a certain period after being notified of the claim of his journeyman or other person for work performed, payment made to a claimant after the lapse of the stipulated time, and before the contractor has notified his dissent to the owner, will be binding as between the two latter, the law presuming assent from the silence of the parties. This presumption, however, is not absolute, and at any time before payment, the contractor may object to the correctness of a demand.3 1. Object of the Notice. The object of the notice is to impart information to the owner of the amount and character of the 1. Carman v. McIncrow, 2 E. D. Smith (N. Y.) 689; Childers v. City of Greenville, 69 Ala. 103; Whittier v. Hollister, 64 Cal. 283; Spaulding v. Thompson etc. Soc., 27 Conn. 573; Rivers v. Mulholland, 62 Miss. 766; Griswold . Wright, 69 Wis. 1; Fay & Co. v. Orison, 60 Iowa 136; Nash v Chicago etc. R. Co. (Iowa), 12 Am. & Eng. R. Cas. 261; Chicago Lumber Co. v. Woodside, 71 Iowa 359. See Kennedy v. Paine, 1 E. D. Smith (N. Y.) 651; Rowland v. Centerville etc. R. Co., 61 Iowa 380; s. c., 11 Am. & Eng. R. Cas. 47; Nolan v. Gardner, 4 E. D. Smith (N. Y.) 727; City of Crawfordsville v. Johnson, 51 Ind. 397; Morehouse v. Moulding, 74 Ill. 322; Budd v. School Dist. No. 4. 51 N. J. L. 36; Pinkston v. Young (N. Car.), o S. E. Rep. 133. A building contract provided that subcontractors should be paid by orders given by the principal contractor, and the owner had knowledge of the furnishing of materials by certain subcontractors. Held, that he was liable therefor, though full payment had been made to the principal contractor, a claim for a mechanics' lien having been filed, and notice having been served by the subcontractors within the thirty days given by statute. Winter v. Hudson, 54 Iowa 336. In California, the claim of a materialman for materials furnished to the original contractor of a building extends only to that portion of the contract price which remains due and unpaid to the contractor by the owner when the claim for the materials was filed. Turner v. Strenzel, 70 Cal. 28; Wiggins v. Bridge, 70 Cal. 437 In Nebraska, a payment within the sixty days by the owner to the contractor does not bind the material-man; nor does the fact that the contractor owes the owner. Ballou v. Black, 21 Neb. 131. 2. Schneider v. Hobein, 41 How. (N. Y.) Pr. 232; Havighorst v. Lindberg, 67 Ill. 463; Wells v. Cahn, 51 Cal. 423; Culver v. Elwell, 73 Ill. 536. Owner is entitled to a credit against contractor of amount of liens paid to material-men supplying him. Whittier v. Wilbur, 48 Cal. 175; Shaw v. Wanderfoide, 53 Cal. 300, 301; Ernst v. Cummings, 55 Cal. 179. At a settlement between H, the owner, and C, the contractor, as to the sum due for the erection of a house and for extra work, at which I accepted an order of C in favor of a third person for the balance due, L, a subcontractor, was present, but did not say or do anything that could have led H to believe he, L, was paid or had released him, H. Held, that L was not estopped from enforcing his lien against H. Cotton v. Holden, 1 MacArthur (D. C.) 463. 3. Baxter v. Sisters of Charity, 15 La. An. 686. |