« ForrigeFortsett »
property to be charged with said lien. If such lien is claimed by a subcontractor, journeyman, or any other person except the contractor performing labor or furnishing materials, the account aforesaid shall be filed within thirty days after the work was done or the materials were furnished by him; and within five days after the filing of said account as aforesaid, he shall serve a copy thereof on the owner or owners of such building, wharf or superstructure, or the agent of such owners, if the latter reside out of the county in which such building, wharf or superstructure is situate, by delivering the same to him personally, or by leaving it at his usual place of residence, with a person of suitable age and discretion, or by depositing it in the post-office, directed to him at his usual place of business. If such owner do not reside within the county, and have no agent therein, service of the copy aforesaid may be made by posting the same in a conspicuous place on the building, wharf or superstructure to be charged with such lien.
SEC. 3. Every subcontractor, journeyman, laborer or other person, performing labor or furnishing materials, shall, under the provisions of this act, have a valid lien upon the building, wharf or superstructure on which such labor was performed, or for which such materials were furnished, regardless of the claims of the contractor against the owner of such building, wharf or superstructure; but if any money be due, or is to become due, under the contract from said owner to said contractor, on being served with a notice by a subcontractor, as provided in the last preceding section, said owner may withhold, out of the first money due, or to become due under the contract, a sufficient sum to cover the lien claimed by such subcontractor, journeyman, laborer, or other person performing labor or furnishing materials, until the validity thereof shall be ascertained by a proper legal proceeding, if the same be contested; and if so established, the amount thereof shall be a valid offset to that extent in favor of the owner against the contractor. But no attachment served on the funds in the hands of the owner of such building, wharf or superstructure, for claims other than those expressed in this act, shall lie against the liens created by this act, nor shall such owner be held or legally bound to answer such attachment until all claims under the contract or liens by this act shall first be satisfied.
SEC. 4. The land upon which any building or superstructure shall be erected, together with a convenient space around the same, or so much as may be required for the convenient use and occupation of the premises, shall also be subject to the lien created by this act, if, at the time the labor was commenced or the first of the materials were finished, the land belonged to the person who caused the said building, wharf, or superstructure to be erected, but if such person owned less than a fee-simple estate in such land, then only his interest therein shall be subject to such lien, and the liens created by this act shall be preferred to every other lien or incumbrance which shall have attached upon the said property subsequent to the time at which the work was commenced or the materials furnished; and also, to all mortgages and other incumbrances unrecorded at the time such work was commenced, or the first of such materials were furnished, but nothing herein contained shall be construed as impairing any valid incumbrance upon the said land duly made and recorded before such work was commenced, or the first of such materials were furnished. SEC. 5. The amount required to be filed by the second section of this act, shall specify that it is the intention of the holder thereof to claim alien upon the premises sought to be charged therewith ; and it shall be the duty of the recorder to file and record such notice and account in a separate book provided for the purpose, and from the time of such filing, all persons shall be deemed to have notice thereof. SEC. 6. No such lien shall bind any building, wharf, or superstructure for a longer period than six months after filing the same, unless suit be brought in a proper court within that time to enforce the same; or, if a credit be given, then within six months after the expiration of the credit; but no lien shall be continued in force for a longer time than two years from the time the work is completed or the materials furnished, by any agreement to give credit. SEC. 7. Said liens may be enforced by suit in a court of competent jurisdiction, on setting forth in the complaint the particulars of such demand, with a description of the premises sought to be charged with said lien ; and at the time of filing the complaint and issuing summons, the plaintiff shall cause a notice to be published for at ieast twenty days, in some newspaper published in the county, if there be one, and if not, then in such mode as the court shall direct, notifying all persons holding or claiming liens, under the provisions of this act, on said premises, to be and appear in said court on a day therein specified, and to exhibit then and there the proof of said liens. On the day appointed, the court shall proceed to hear and determine the said claims in a summary way, or may refer the same to a referee to ascertain and report upon said liens, and the amount justly due thereon; and all liens not so exhibited and proved shall be deemed to be waived in favor of those which are so exhibited. On ascertaining the whole amount of said liens with which the said premises are justly chargeable as hereinbefore provided, the court shall cause said premises to be sold in satisfaction of said liens, and the costs of suit; and if the proceeds of such sale shall not be sufficient to satisfy the whole of such liens established as aforesaid, then the same shall be apportioned according to the respective rights of the several parties. SEC. 8. Nothing herein contained shall be construed to take away, or affect in any manner, any action which any such contractor, laborer, subcontractor, or other person performing labor or furnishing materials for such building, wharf, or superstructure would otherwise have against his employer. SEC. 9. The holder of such lien, filed as aforesaid, on payment thereof, shall enter satisfaction of the same of record, at the request of any one interested in the property charged with the lien, within ten days after such request, on the payment of the costs of such entry; and, on failure to enter such satisfaction, shall forfeit and pay the party aggrieved the sum of fifty dollars per day until such satisfaction shall be entered, to be recovered in the same manner as other debts are recovered. SEC. 10. Any mechanic or artisan who shall make, alter, or repair any article of personal property, at the request of the owner or legal possessor of such property, shall have a lien on such property so made, altered, or repaired, for his just and reasonable charges for his work done and materials furnished, and may hold and retain possession of the same until such just and reasonable charges shall be paid; and if not paid for within the space of two months after the work shall be done, such mechanic or artisan may proceed to sell the property by him so made, altered, or repaired, at public auction, by giving three weeks’ public notice of such sale, by advertisement in some newspaper published in the county in which the work may be done; or, if there is no such newspaper, then by posting up notices of such sale in three of the most public places in the town where such work was done; and the proceeds of said sale shall be applied, first, to the discharge of such lien and the costs and expenses of keeping and selling such property, and the remainder, if any, shall be paid over to the owner thereof. SEC. 11. Nothing contained in this act shall be deemed to apply to or affect any lien heretofore acquired, and an act entitled “An Act to provide for the Lien of Mechanics and others,” passed April twelve, one thousand eight hundred and fifty, and all other acts inconsistent with the provisions of this act are hereby repealed. SEC: 12. When any person shall make an express contract in writing with the owner of any lot or lots, in any incorporated city or town, to grade or improve the same, or the street in front of and adjoining the same, and shall go on and complete the said grading or improving of said lot or street adjoining the same, it shall be considered as an improvement upon said lot or lots, and the same provisions of this act shall apply thereto as would apply if it were a building erected on the said lot or lots. SEC. 13. When any person shall make an express contract, in writing, with the owner or owners of any lot or lots, in any incorporated city or town, or with the person who was, at the time of such contract, and had been for more than one year the next preceding, in the actual possession of such lot or lots, by himself or themselves, or tenant or tenants, under bona fide claim of ownership, to grade, fill in, build upon, or otherwise improve the same, and shall go on and complete such grading, filling, building, or other useful improvement, he shall have a lien upon such lot or lots for the amount contracted to be paid; and all the provisions of this act respecting the mode of recording, securing, and enforcing mechanics’ liens, shall apply thereto. When the amount of the debt sought to be secured by lien is not over two hundred dollars, the action should be brought in a justice's court. If, however, the amount of all the liens brought in should exceed two hundred dollars, the justice would lose jurisdiction.
The evident intention of the act in relation to mechanics' liens, was to give mechanics and artisans a lien for all work done by them, upon any description of property. The first section gives a lien upon the superstructure itself, as distinct from the land; and the fourth section gives a lien also upon the land, when the same is owned by the person who caused the superstructure to be erected." The object of the act was to give the mechanic a lien upon whatever interest the person who caused the superstructure had, and which could be sold under execution." The lien of a subcontractor filed, and notice given to the owner of a building within thirty days after the completion of a work, under the act of 1855, attaches from the time the work was commenced, and takes precedence over a garnishment served on the owner against the head contractor, after the work was commenced, and before the filing and serving notice of lien.” Where a civil engineer's lien for work done for the defendants in the construction of a canal or ditch, was filed in the recorder's office of the county where the ditch is located, on the 6th day of May, 1856, and suit was not commenced to enforce the lien until the 26th day of January, 1857: held, that the time fixed by statute for the enforcement of the lien had expired before the commencement of the suit, and that the plaintiff was not entitled to a judgment giving a lien upon the property.” A decree for the sale of premises in a suit to enforce a mechanic's lien, has the same and no greater effect upon the rights of purchasers and incumbrancers, prior to the commencement of the suit, than a similar decree would have upon the foreclosure of a mortgage. If such purchasers or incumbrancers are not made parties, they are not bound by the decree or the proceedings thereunder." The liens, which by the act of April 19th, 1856, entitled “An Act for Securing Liens to Mechanics and Others,” are required to be exhibited and proved, upon publication of notice in some
1 9 Cal. 119. * 10 id. 374. * 7 id. 858. * id. 547.