Parties interested in property subject to the lien, who are not made parties to the suit to enforce it, may, in a suit upon the title under the lien, object to the irregularity of the proceedings.1 Where a mechanic agrees with a builder or architect to furnish materials for a house belonging to a third person, the builder must be made a party.2 1. Owner and Contractor.-When a claim for a lien is filed by a subcontractor or a person who has furnished to a contractor materials for a building, it is a proper practice to make the contractor, as well as the owner of the building, a defendant in the suit, so that the court may adjust all the equities between the parties.3 Application to cause the contractors to be made par Under N. Y. Laws of 1863, §§ 2, 5, 7 and 9, a person to whom a fraudulent conveyance to defeat a lien has been made, since work commenced, may be considered as an encumbrancer, and is properly made a party. Meehan v. Williams, 2 Daly (N. Y.) 367. Persons acquiring interests after suit brought need not be made parties. Whitney v. Higgins, 10 Cal. 547. So if there be a prior mortgagee not made a party, he, or his assignee, or his purchaser at a foreclosure sale, have the equitable right to redeem from the lien sale. Whitney v. Higgins, 10 Cal. 547. Where the owner of property, after settlement of the amount due for the building of houses on the same, made notes payable to his own order, secured by a deed of trust on the same property, which was duly recorded, and he negotiated and assigned such notes to raise a large sum of money, it was held, that the holder of those notes was a necessary party to a proceeding to enforce a mechanics' lien for labor and materials in improving the property, and not being made a party thereto within six months after payment was due for the labor and materials, the proceeding as against him was barred. McGraw v. Bayard, 96 Ill. 146, 147. Lessee and Contractor.-A mechanics' lien filed against the owners of property in fee, who were not the contractors for the work performed, instead of against the lessee of such property, who was the contractor, and at whose instance the work was done and the materials furnished is not a good foundation for a judgment against the leasehold interest. The lien should be filed against the lessee and contractor. Carey v. Wintersteen, 60 Pa. St. 395. Corporation. Where a corporation, with whom a contract was made for materials with which to erect a building, ceases to exist as a church and it becomes disorganized it is not necessary to make such body a defendant on petition to establish and enforce a mechanics' lien. Jennings v. Hinkle, 81 Ill. 183. 1. Hauser v. Hoffman, 32 Mo. 334. Walkenhorst v. Coste, 33 Mo. 401; Kelley v. Chapman, 13 Ill. 530; Dunphy v. Riddle, 86 Ill. 22; Williams v. Chapman, 17 Ill. 423; Steigleman v. McBride, 17 Ill. 300; Heim v. Vogel, 69 Mo. 529, 535; Marvin v. Taylor, 27 Ind. 73 Persons interested, but who are not made parties to a decree, for the enforcement of a mechanics' lien, may bring a bill to restrain the sale ordered under the decree, and, upon such a bill, are entitled to have their interests determined by the court. Raymond v. Ewing, 26 Ïll. 329. In a suit to enforce a mechanics' lien, it is erroneous to enter judgment for the debt, against the owner and other de fendants, not parties to the contract with the plaintiff. Walkenhorst v. Coste, 33 Mo. 401. The rights of a person not made a party are not affected by the decree or any proceedings under it. Kelley v. Chapman, 13 Ill. 530. 2. Barnes v. Wright, 2 Whart. (Pa.) 193; Sinnickson v. Lynch, 25 N. J. L. 317. 3. Carney v. La Crosse etc. R. Co., 15 Wis. 503; Kerms v. Flynn, 51 Mich. 573; Walkenhorst v. Coste, 33 Mo. 401; Sullivan v. Decker, 1 E. D. Smith (N. Y.) 699; Hooper v. Flood, 54 Cal. 218; Crawford v. Crockett, 55 Ind. 220; Emmet v. Rotary Mill Co., 2 Minn. 286; Clark v. Brown, 22 Mo. 140. See Sinnickson v. Lynch, 5 N. J. L. 317; Rogers v. Klingler, 3 Whart. (Pa.) 332; ties should, in general, be made by the defendant's motion or petition.1 2. Trustee and Cestui Que Trust. In a proceeding to enforce a mechanics' lien, both the trustee and cestui que trust should be made parties.2 3. Principal and Agent.-The principal and not the agent is the proper party in an action to foreclose a mechanics' lien. 4. Husband and Wife.-A claim filed against the husband alone. as owner, and a contractor not referring to or making the wife a party to the record in any way is not a lien against her estate. So where a lien is filed against the property of a married woman. on a contract made with her concerning her separate property, the husband need not be made a party. But where a petition to enforce a mechanics' lien for labor and materials in the erection Barnes v. Wright, 2 Whart. (Pa.) 193; Foster. Wulfing, 20 Mo. App. 85; Fruin. Mitchell Furniture Co., 20 Mo. App. 313; Barker v. Maxwell, 8 Watts (Pa.) 478; Steinmann v. Strimple, 29 Mo. App. 478; Giant Powder Co. v. San Diego Flume Co.,78 Cal. 193. A mechanics' lien against a reputed owner, who was also contractor, though not named as such, is valid. Christine v. Manderson, 2 Pa. St. 363. In an action by a subcontractor to enforce a mechanics' lien, it is sufficient if one of the original contractors is joined with the owner of the suit. Fruin v. Mitchell Furniture Co., 20 Mo. App. 313; Foster v. Wulfing, 20 Mo. App. 85. If another person than the owner be joined as a defendant, the complaint must show what interest he has in the premises. Jenks v. Brown, 2 Hun (N. Y.) 667. In Stevenson v. Dick, 8 W. N. C. (Pa.) 76, it was held not necessary to name the contractor unless the claimant contracted with him. See Williams v. McCracken, 3 L. T., N. S. (Pa.) 19. Where a claimant has followed the precise course pointed out by the statute to create and enforce his lien, he cannot be met with a demurrer to his proceed ings, because he has not made the contractor a party. Foster v. Skidmore, 1 E. D. Smith (N. Y.) 719. 1. Foster v. Skidmore, 1 E. D. Smith (N. Y.) 719. 2. Bayard v. McGraw, 1 Ill. App. 134; McGraw v. Bayard, 96 Ill. `147; Phoenix Mut. Ins. Co. v. Batchen, 6 III. App. 621; Clark v. Manning, 4 Ill. App. 649. The general equity rule is that all persons interested in the subject matter of the litigation must be made parties in' order that the decree may affect their rights, and this rule requires that both the trustee and cestui que trust be made parties in suits respecting the trust property. McGraw v. Bayard, 96 Ill. 147. Where, in a proceeding to enforce a mechanics' lien the trustee and beneficiary in a prior deed of trust are not made parties, the judgment will have no force or effect as to the beneficiary in, or purchaser under, the deed of trust, and the purchaser, at a sale upon the mechanics' lien, will only acquire the equity of redemption, and the right to the premises after the trust lien has been paid. Coe v. Ritter, 86 Mo. 277. Exception to Rule.-There is an exception to this rule, when the trust is an active one, imposing on the trustee the duty of receiving, controling and managing the trust fund for the benefit of the cestui que trust. But when a trustee is interposed between a lender and a borrower of money merely for the purpose of enabling the lender to obtain payment through the exercise by the trustee of 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 grantor in performing the conditions of the contract, both trustee and the cestui que trust must be made parties. McGraw v. Bayard, 96 Ill. 147. 3. Hooper 7. Flood, 54 Cal. 218. 4. Finley's Appeal, 67 Pa. St. 453. 5. Whitney v. Joslin, 108 Mass. 103. of a building upon real estate of a married woman, alleges that her husband has some interest in the premises which is admitted by demurrer, he will be a necessary party for the purpose of cuting off his interest by the decree.1 A married woman is not a necessary party in a proceeding to enforce a lien on an estate by the curtesy. But in a suit to foreclose a lien on a homestead, the wife has such an interest as to make her a proper party.3 5. Other claimants need not be made parties to the proceedings to enforce individual liens unless required by statute. Where such provisions are made for their becoming parties they have the same rights as if they had filed originally separate petitions for the enforcement of their liens.4 6. Rights of Purchasers.-One who has purchased real estate after the filing of a mechanics' lien, and before the commencement of a suit to enforce the same, is a necessary party to such suit. But persons who acquire interests as purchasers or encumbrancers after suit brought need not be made parties. 1. Greenleaf v. Beebe, 8o Ill. 520. 2. Schnell v. Clements, 73 Ill. 613. Where property belongs to a married woman, subject to an estate by the curtesy in her husband, she has no such interest in the subject matter of a suit to enforce a mechanics' lien against her husband's estate in the property, as to entitle her to become a party to such suit, either on her own application or that of other parties, nor can her interest in the property be affected in such suit. Schnell v. Clements, 73 Ill. 613. 3. Weston v. Weston, 46 Wis. 130; Madigan v. Walsh, 22 Wis. 501. See Gray v. Gates, 37 Wis. 614; Bean v. Fisher, 14 Wis. 57. In Missouri, the mechanics' lien law is no exception to the law requiring that the husband shall be joined in all actions. Latshaw v. McNees, 50 Mo. 381; Fink v. Hanegan, 51 Mo. 269. 4. Dewing v. Congregational Soc., 13 Gray (Mass.) 414. In proceedings to foreclose a mechanics' lien, other persons than the one against whom the claim was filed as owner were made parties defendant, on the ground that conveyances by, and to them, of the premises, were fraudulently made, to defeat plaintiff's claim. The complaint asked to have such conveyances declared void. Held, that the complaint set forth only one cause of action, and was not demurrable. Tisdale v. Moore, 15 N. Y. Supreme Ct. 19. 5. Marvin v. Taylor, 27 Ind. 73; Edwards v. Derrickson, 28 N. J. L. 39; Holland v. Jones, 9 Ind. 495; Rice v. Hall, 41 Wis. 453; Lampson v. Bowen, 41 Wis. 484. And see Ortwine v. Caskey, 43 Md. 134. J filed notice of a mechanics' lien upon the estate of S for work and labor done. After the filing of notice, and before commencement of suit in chancery to enforce the lien, S sold in fee to H, who thereafter was continuously in possession. The deed was duly acknowledged and recorded. Held, that H was a necessary party. Holland v. Jones, 9 Ind. 495. Where the title of property, upon which a lien was claimed, is changed between the time of making the contract or doing the work and the time of filing the lien; the person owning the property when the lien is filed is the proper one to be made a party as owner. Edwards v. Derrickson, 28 N. J. L. 39. Affirmed 29 N. J. L. 468. In Maine, one who buys real estate after the erection of a house thereon is not a necessary party to a suit by the builder to enforce a lien thereon. Colley v. Doughty, 62 Me. 501. In Missouri, the purchaser of a building subject to a mechanics' lien is not a necessary party to a suit to enforce the lien, under the statute of Missouri, but he may be made a party. Schaeffer v. Lohman, 34 Mo. 68. See Clark v. Brown. 25 Mo. 59. 6. Colley v. Doughty, 62 Me. 501; Whitney. Higgins, 10 Cal. 547; Suydam v. Holdin, 11 Abb. Pr., N. S. (Ñ. J.) 329. 7. Vendor. Where the owner of the premises upon which a builder's lien has attached has conveyed away his interest, he need not be made a party to a bill to foreclose the lien.1 8. Assignor.-A person who has assigned all his interest in premises upon which there is a lien is not a necessary party to a petition for foreclosure.2 9. Tenants in common must be made parties in the foreclosure of a mechanics' lien on the premises.3 a 10. Actions Joint or Several-(a) Plaintiffs.-So where contract is made in the name of one partner for the benefit of both, the petition being governed by the rules of equity, may be in the names of both; or it may be in the name of a firm, one of whose members is named as the contractor. Parties having a lien on a building, but whose claims are separate and distinct, without any community of interest on the claims themselves, can join in an equitable action to establish and enforce their liens.6 (b) Defendants.-On a joint and several contract of two or more parties with a mechanic that he should build them a house, 1. Worden v. Hammond, 37 Cal. 61; Kellenberger v. Boyer, 37 Ind. 188; Rose v. Persse etc. Paper Works, 29 Conn. 265. Holders of a vendor's lien and a mortgage on certain premises are not necessary or indispensable parties to a suit to enforce a mechanics' lien against property on the premises, where complainant does not seek priority over such liens, as they cannot be prejudiced by the suit. Case Mfg. Co. v. Smith, 40 Fed. Rep. 339. 2. McCormick v. Lawson, 3 Neb. 449; Harrison etc. Iron Co. v. Čouncil Bluffs Water Works Co., 25 Fed. Rep. 170; Goff v. Papin, 34 Mo. 177; Davis . Bilsland. 18 Wall. (U. S.) 659. Compare Caldwell . Lawrence, 10 Wis. 331; Pairo v. Bethell, 75 Va. 825. The assignee of a mechanic's claim may file a lien in the name of his assignor. Hallahan v. Herbert, 4 Daly (N. Y.) 209; s. c., 11 Abb. Pr. (N. Y.) N. S. 326; 57 N. Y. 409. Assignee of lien by verbal transfer for security cannot sue in his own name. Ritter v. Števenson, 7 Cal. 388. 3. Lowe v. Turner, 1 Idaho 120. 4. Lombard v. Johnson, 76 Ill. 599 See McDonald v. Backus, 45 Cal. 262. A lien will not be declared in favor of partners where no joint lien has been created. Roberts v. Gates, 64 Ill. 374. 5. Chambersburg Woolen Mfg. Co. v. Hazelet, 3 Brewst. (Pa.) 98; McDonald v. Backus, 45 Cal. 263; Jones v. Hurst, 67 Mo. 568; Rockwood v. Walcott, 3 Allen (Mass.) 458; Lombard v. Johnson, 76 Ill. 599; Work v. Hall, 79 Ill. 196. The use of the firm name in a mechanics' lien filed, is a sufficient designation of the party claimant, without the use of the individual name of each member of the firm. Black's Appeal, 2 W. & S. (Pa.) 179. Where the claimants of a mechanics' lien are partners, and are designated in the statement filed for a lien by the partnership name under which the business of the firm is conducted, the mention of the individual names of the partners is not essential to the validity of the statement. Chicago Lumber Co. v. Osborne, 40 Kan. 168; Howard v. McKowen, 2 Browne (Pa.) 150. 6. Barber v. Reynolds, 33 Cal. 497. Affirmed in Barber v. Reynolds, 44 Cal. 519. See Tibbetts v. Moore, 23 Cal. 208. In Bush v. Connely, 33 Ill. 447, it was held that a bill to enforce a mechanics' lien could not be maintained by several complainants jointly, unless all the complainants are jointly interested and jointly entitled to a lien on they should be made defendants.1 But nonjoinder of parties defendant may in some States be waived by not making the objection by demurrer at the proper stage of the trial.2 The owners in severalty of contiguous lots who contract jointly for the erection of a building thereon and subsequently promise to be responsible for materials so furnished may be properly joined as defendants.3 Where a corporation with whom a contract was made for materials with which to erect a building ceases to exist and becomes disorganized, it is not necessary to make such body a defendant on petition to establish and enforce a mechanics' lien.+ 11. Survivorship.-Where partners have performed labor or furnished materials for their common benefit and thus acquired a mechanics' lien the claim may be prosecuted by the survivor. And in proceedings to enforce a mechanics' lien against an estate the administrator as well as the heir should be made parties.5 the premises. See also Roberts v. 458; Davis v. Church, 1 W. & S. (Pa.) Gates, 64 Ill. 374. A, B and C, each filed a separate mechanics' lien for work, and materials furnished under contracts, in building a house on the premises of D. D held the lot, on which the house was built, under an agreement from E, who was made a defendant on his own motion; by this agreement E was to convey said lot to D, in fee simple, on receipt of one thousand dollars; the agreement was not recorded. Held, that the plaintiffs were not interested in the subject of action, nor jointly interested in obtaining the relief demanded, so as to be joined as plaintiffs in one consolidated action under the Code, § 41, nor united in interest, so as to be joined under § 43. Harsh v. Morgan, í Kan. 293. 1. McDonald v. Backus, 45 Cal. 262. See Putnam v. Ross, 55 Mo. 118; Hassett v. Rust, 64 Mo. 325. Either member of a firm contracting for the building of a house may be sued alone. In such case the notice is not invalidated by alleging the demand to be against members of the firm. Putnam v. Ross, 55 Mo. 116. 2. Harbeck v. Southwell, 18 Wis. 418; Cord v. Hirsch, 17 Wis. 403; Carney v. La Crosse etc. R. Co., 15 Wis. 503; Bevier v. Dillingham, 18 Wis. 529, 530; Cary v. Wheeler, 14 Wis. 281. 3. Treat Lumber Co. v. Warner, 60 Wis. 183. 4. Weeks v. Walcott, 3 Allen (Mass.) 240. 5. Guerrant v. Dawson, 34 Miss. 149. See Mix v. Ely, 2 Greene (Iowa) 513. When the tit e to property, subject to a mechanics' lien, is transferred, between the time of making the contract or doing the work and the time of filing the lien, the person who owned the property when the lien was filed, or his executor, in case he has since died, is the proper one to be made a party defendant as owner in proceedings to enforce the lien. Robins v. Bunn, 34 N. J. L. 322. See Horton v. Carlisle, 2 Disney (Ohio) 184. Where the lien is on an estate for years and the owner dies, his administrators are necessary parties to a foreclosure. Brown v. Žeiss, 59 How. Pr. (N. Y.) 345. When in a scire facias to enforce a mechanics' lien upon real estate, the owner dies pending the suit, it must be revived against his heirs and not against his personal representatives. Belcher v. Schaumburg, 18 Mo. 189. Where the owner of real estate upon which there was a mechanics' lien, sold the property, and took a mortgage back to secure the purchase money, after which he died, it was held that it was not necessary to make his heirs, but only his administrator, party defendant to a proceeding to enforce the mechanics' lien. Shields v. Keys, 24 Iowa 298. So in an action to foreclose a me |