The lien of the mechanic attaches to and exists on the land and the building erected thereon, in consequence of enhancing the value of the property by incorporating labor and materials in the building which becomes a part of the land itself. It carries with it such a right to the land upon which the building is situated as is necessary to the full enjoyment of the use of the property.2 And according to some cases it attaches in such a sense that if the building is removed or destroyed by fire,' the mechanic loses the entire value and price of his labor and materials.3 12 Iowa 287, 292; Stout v. City Fire Ins. Co., 12 Iowa 371; Franklin Fire Ins. Co. v. Coates, 14 Md. 285; Long hurst v. Star Ins. Co., 19 Iowa 364; Wigton and Brooks' Appeal, 28 Pa. St. 161; Cameron v. Fay, 55 Tex. 58; Grevemeyer v. Southern etc. Ins. Co., 62 Pa. St. 340; Protection Ins. Co. v. Hall, 15 B. Mon. (Ky.) 411. Compare Sontag v. Brennan, 75 Ill. 279. A party having a mechanics' lien on buildings by him erected on land then covered by mortgage has an insurable interest limited only by their value and the amount of his claim. His discontinuance of his suit to enforce the lien after their destruction is not matter of defence to his action on the policy. Insurance Co. v. Stinson, 103 U. S. 25. 1. Carter v. Humboldt Fire Ins. Co., 12 Iowa 287, 293; Stout v. Fire Ins. Co., 12 Iowa 371; Longhurst v. Star Ins. Co., 19 Iowa 364; Skillin v. Moore, 79 Me. 554. When work is done on a new building which is connected with older buildings the lien attaches to the whole building, and so much of the adjoining ground as is necessary for the use and enjoyment of the building, for the purpose for which it was designed. Nelson v. Campbell, 28 Pa. St. 156. A kitchen is an erection which will authorize the filing of a mechanic's claim, and the lien will extend to and bind the main building to which the kitchen is attached. Hershey Shenk, 58 Pa. St. 382. v. But putting an additional story on a house is not an addition within the meaning of the mechanics' lien act, but merely an alteration, and the lien does not attach. Updike v. Skillman, 27 N. Y. L. 131. So no lien attaches for the conversion of a garret into bed rooms, to increase the capacity of the house, this being an alteration. Whitenack v. Noe, 11 N. Y. Eq. 321. land before a patent has issued, for ma- Under statute providing that "every University of Vermont, 3. Carter v. Humboldt Fire Ins. Co., Compare Steigleman v. McBride, 17 And if the building is destroyed by No lien can be obtained upon public Stettler, 26 Pa. St. 246. 3. Averments of Contract, 158. 4. Description, 159. 5. Averments as to Notice and Filing Lien, 161. 6. Averments as to the Building, 161. 7. Averments as to the Amount Due, 162. 8. Averments as to Time, 163. 9. Bill of Particulars, 163. 10. Joint Petition, 164. 11. Mistake, 165. XIX. Parties, 165. 1. Owner and Contractor, 166. 3. Principal and Agent, 167. 6. Rights of Purchasers, 168. 8. Assignor, 169. 9. Tenants in Common, 169. 10. Action Joint or Several, 169. (a) Plaintiffs, 169. (b) Defendants, 169. 11. Survivorship, 170. 12. Prior and Subsequent Lienors, 171. 13. Persons Made Parties After Commencement of Suit, 171. 14. Rights of Persons Not Parties, 171. 15. Remedy for Impleading Wrong Parties, 172. 16. Where Suit to Enforce Lien Is in the Nature of Chancery Proceedings, 172. 17. Where Necessary Parties a Question for the Jury, 172. XX. Pleading, 172. 1. Plea or Answer, 173. 2. Time of Filing Answer, 174. 3. When Answer Received as Evidence, 174. 4. Bad Pleas, 174. 5. Requisites of Good Plea, 174. 6. Payment, 175. 7. Defect in Proceedings, 175. 8. Stay of Proceedings, 175. 9. Effect of Nonsuit, 176. 10. Changing Form of Action, 176. 11. Consolidation of Suits, 176. 12. Default, 176. 13. New Trial, 176. 14. Trial by Jury, 176. XXI. Demurrers, 176. I. DEFINITION.—The lien of a mechanic is a claim created by law for the purpose of securing a priority of payment of the price and value of work performed and materials furnished in erecting a building, and as such it attaches to the land as well as the buildings erected thereon.1 Of itself, it is a peculiar, particular and special remedy given by statute, founded and circumscribed by the terms of its own creation.2 1. Nature of the Lien.-The mechanics' lien has no recognition in the common law, and is altogether the creature of statute.3 It exists on certain principles independent of any special contract.4 Where a contract is entered into by the parties it is not the contract which creates the lien under the statute, but it is the use of the materials furnished upon the premises, the putting of them 1. Carter v. Humboldt Fire Ins. Co., 12 Iowa 287, 292; Brown v. Story, 4 Metc. (Ky.) 316; Mochon v. Sullivan, I Mont. 470. A mechanics' lien is a charge authorized by statute to secure a priority of payment of a debt incurred by labor performed and materials furnished in erecting a building, and it is to be enforced as a means of compelling payment in the manner therein provided. Barrows v. Baughman, 9 Mich. 213, 217. 2. Copeland v. Kehoe, 67 Ala. 594. 3. Tilford v. Wallace, 3 Watts (Pa.) 141; Frost v. Ilsley. 54 Me. 345, 351; Ehler's Admr. v. Elder, 51 Miss. 495; Childs v. Anderson, 128 Mass. 108; Dinkins v. Bowers, 49 Miss. 219; Chambersburgh Mfg. Co. v. Hazelet, 3 Brewst. (Pa.) 98; Freeman v. Cram, 3 N. Y. 305; McCay's Appeal, 37 Pa. St. 125; Copeland 7. Kehoe, 67 Ala. 594; Barnard v. McKenzie, 4 Colo. 251; Wehr v. Shryock, 55 Md. 334; Shack leford v. Beck, So Va. 573; Reindollar 7. Flickinger, 59 Md. 469; Willison v. Douglas, 66 Md. 99; Grant v. Vandercook, 57 Barb. (N. Y.) 165; Porter v. Miles, 67 Ala. 132; Tilford v. Wallace, 3 Watts (Pa.) 141; Roberts v. Fowler, 3 E. D. Smith (N. Y.) 632; Bottomly v. Rector etc. Grace Church, 2 Cal." 90; Rees v. Ludington, 13 Wis. 276; s. c., 80 Am. Dec. 741; White Lake Lumber Co. v. Russell, 22 Neb. 126; Mushlitt v. Silverman, 50 N. Y. 360; Grant v. Vandercook, 57 Barb. (N. Y.) 165; E Abb. Pr. N. S. 465. Proceedings to impose and enforce mechanics' liens have found no foundation in common law, but rest and must find support entirely upon the statutes authorizing them. Benton v. Wick. wire, 54 N. Y. 226, Grant v. Vandercook, 57 Barb. (N. Y.) 165; s. c., 8 Abb. (N. Y.) Pr. N. S. 455; Huxford v. Bogardus, 40 How. (N. Y.) Pr. 94. 4. Ehler's Admr. v. Elder, 51 Miss 495; Frost v. Ilsley, 54 Me. 345, 351; into the building and attaching them to the freehold which entitles the party furnishing the materials to a lien upon the premises to the extent of their value.1 The statutes do not give the mechanic the right to his debt but furnishes a remedy for its collection.2 It is a cumulative remedy which may be concurrently pursued in connection with the ordinary actions for the collection of debts.3 But such a remedy is available only to the creditor who brings himself within the terms of the statute.4 The interest conferred by the lien is not one that creates an estate in the property,5 yet the interest is such that it may be assigned or insured.7 Colpetzer v. Trinity Church, 24 Neb. Hinckley, 32 Wis. 362; Jones v. Alex113. "The mechanics' lien, as it is commonly called, is created by law and not by contract, except so far as the contract may furnish the basis to fix and secure the lien by the subsequent act of the party interested, by filing record and notice under the provisions of the statute." Bonner, J., in Miner v. Moore, 53 Tex. 224. 1. Gaty v. Casey, 15 Ill. 189; Sodini v. Winter, 32 Md. 130; Montaudon v. Deas, 14 Ala. 33; Peck v. Hensley, 21 Ind. 344; Tilford v. Wallace, 3 Watts (Penn.) 141; Bailey v. Mason, 4 Minn. 546. In Frost v. Ilsley, 54 Me. 345, 351, BARROWS, J., in speaking of the mechanics' lien, says: "It is not a part of the contract, but a merely incidental accompaniment, deriving its validity only from positive enactment and liable always to be controlled, modified or taken away by subsequent enactment, and such modification or removal cannot be considered as in any degree impairing the obligation of the contract itself.' 2. Hall v. Bunte, 20 Ind. 304, 305. 3. Ehler's Admr. v. Elder, 51 Miss. 495; Murray v. Rapley, 30 Ark. 568; Brennan v. Swasey, 16 Cal. 141; Rob erts v. Wilcoxen, 36 Ark. 355. 4. Walker V. Hauss-Higo, I Cal. 184; Green v. Jackson Water Co., 10 Cal. 374; Davis v. Livingston, 29 Cal. 283; Wood v. Wrede, 46 Cal. 637; Hooper v. Flood, 54 Cal. 218; Cook v. Heald, 21 Ill. 425, 429; Bottomly v. Grace Church, 2 Cal. 90; Greene v. Ely, 2 Greene (Iowa) 508; Radcliffe v. Pierce, 23 Ill. 473; Burkhart v. Reisig, 24 Ill. 529; Brady v. Anderson, 24 Ill. 110; Baker v. Winter, 15 Md. 1; Will iams . Tearney, 8 S. & R. (Pa.) 58; Ehler's Admr. v. Elder, 51 Miss. 495; Porter v. Niles, 67 Ala. 132; Hall v. ander, 10 S. & M. (Miss.) 627; Suther- Car. 77: Farmers' The lien of a mechanic is a statutory privilege, not a common law right. To secure the benefits of the statute, its requirements must be strictly complied with. McCay's Appeal, 37 Pa. St. 125. 5. Mason v. Jones, 2 Barb. (N. Y.) 229. See Carson v. Boudinot, 2 Wash. (U. S.) 33; Turney v. Saunders, 5 III. 527. 6. Ritter v. Stevenson, 7 Cal. 388; First Nat. Bank of Decorah v. Day Brothers, 52 Iowa 680; Tuttle v. Howe, 14 Minn. 145; Chicago etc. R. Co. v. Sturgis, 44 Mich. 538; Mason v. Germaine, 1 Mont. 263; Austin etc. R. Co. v. Rucker, 59 Tex. 587; s. c., 12 Am. & Eng. R. Cas. 259; Murphy v. Adams, 71 Me. 113; Kerr v. Moore, 54 Miss. 286; Smith v. Bailey, 8 Daly (N. Y.) 128; Farwell v. Grier, 38 Iowa 83; German Bank Schloth, 59 Iowa 316; Rogers v. Omaha Hotel Co., 4 Neb. 54; Iaege v. Bossieux, 15 Gratt. (Va.) 83; Merchant v. Ottumwa Water Power Co., 45 Iowa 451; Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219, 221; Rollin v. Cross, 45 N. Y. 766, 767; Brown v. Harper, 4 Oreg. 90. Compare Cadwell v. Lawrence, 10 Wis. 331; Dan v. Mississippi etc. R. Co., 27 Ark. 564; Cairo & Vincennes R. Co. v. Fackney, 78 Ill. 116; Ruggles v. Walker, 34 Vt. 468; Pearsons 7'. Tincker, 36 Me. 384; Rollin v. Cross, 45 N. Y. 766. 7. Carter v. Humboldt Fire Ins. Co., The lien of the mechanic attaches to and exists on the land and the building erected thereon, in consequence of enhancing the value of the property by incorporating labor and materials in the building which becomes a part of the land itself. It carries with it such a right to the land upon which the building is situated as is necessary to the full enjoyment of the use of the property.2 And according to some cases it attaches in such a sense that if the building is removed or destroyed by fire,' the mechanic loses the entire value and price of his labor and materials.3 12 Iowa 287, 292; Stout . City Fire Ins. Co., 12 Iowa 371; Franklin Fire Ins. Co. v. Coates, 14 Md. 285; Long hurst v. Star Ins. Co., 19 Iowa 364; Wigton and Brooks' Appeal, 28 Pa. St. 161; Cameron v. Fay, 55 Tex. 58; Grevemeyer v. Southern etc. Ins. Co., 62 Pa. St. 340; Protection Ins. Co. v. Hall, 15 B. Mon. (Ky.) 411. Compare Sontag v. Brennan, 75 Ill. 279. A party having a mechanics' lien on buildings by him erected on land then covered by mortgage has an insurable interest limited only by their value and the amount of his claim. His discontinuance of his suit to enforce the lien after their destruction is not matter of defence to his action on the policy. Insurance Co. v. Stinson, 103 U. S. 25. 1. Carter v. Humboldt Fire Ins. Co., 12 Iowa 287, 293; Stout v. Fire Ins. Co., 12 Iowa 371; Longhurst v. Star Ins. Co., 19 Iowa 364; Skillin v. Moore, 79 Me. 554. When work is done on a new building which is connected with older buildings the lien attaches to the whole building, and so much of the adjoining ground as is necessary for the use and enjoyment of the building, for the purpose for which it was designed. Nelson v. Campbell, 28 Pa. St. 156. A kitchen is an erection which will authorize the filing of a mechanic's claim, and the lien will extend to and bind the main building to which the kitchen is attached. Hershey Shenk, 58 Pa. St. 382. v. But putting an additional story on a house is not an addition within the meaning of the mechanics' lien act, but merely an alteration, and the lien does not attach. Updike v. Skillman, 27 N. Y. L. 131. So no lien attaches for the conversion of a garret into bed rooms, to increase the capacity of the house, this being an alteration. Whitenack v. Noe, 11 N. Y. Eq. 321. land before a patent has issued, for machinery placed upon it, although a lien may attach to the machinery. Paige v. Peters, 70 Wis. 178. Under statute providing that “every building hereafter erected or built” shall be liable for labor performed or materials furnished for its construction, which debt shall be a lien on such building and on the land wheron it stands, including the lot or curtilage whereon the same is erected, the plaintiffs sought to enforce a lien for lumber furnished to build the defendant's floating dock. It appeared that the dock floated on tide water alongside of the defendant's land, to which it was attached. It further appeared that it was built and launched in sections, upon other premises of the defendant. Held, that the lien did not attach, because the dock was not a building within the meaning of the act; because it did not stand on a lot or curtilage; and because the place where it was attached was not the place of its construction. Coddington v. Beebe, 29 N. J. L. (5 Dutch.) 550. 2. Roby v. University of Vermont, 36 Vt. 564. 3. Carter v. Humboldt Fire Ins. Co., 12 Iowa 287, 292; Coddington v. Dry Dock Co., 31 N. J. L. 477; Wigton & Brooks' Appeal, 28 Pa. St. 161; Presbyterian Church v. Stettler, 26 Pa. St. 246; Wigton and Brooks' Appeal, 28 Pa. St. 161. Compare Steigleman v. McBride, 17 Ill. 300; Clark v. Parker, 58 Iowa 509; Paddock v. Stout, 121 Ill. 571; Sontag v. Brennan, 75 Ill. 279; Freeman v. Carson, 27 Minn. 516. And if the building is destroyed by fire the lien is gone so far as relates to the land and to materials left standing after the destruction of the building and to buildings appurtenant only to the main one. Wigton & Brooks' Appeal, 28 Pa. St. 161; Presbyterian Church v. No lien can be obtained upon public Stettler, 26 Pa. St. 246. |