XII. LIEN LAWS

Who may have as principal contractor, etc., for what work; what subject to; priority; liability assignee; garnishment. Section 3314. (Summary) Allows a lien to principal contractors, architects, civil engineers, and surveyors for work done or caused to be done and materials furnished.

(1) For or in or about the erection, construction, repair, protection or removal of any dwelling house, bu ld.ng or appurtenance thereto, structure, bridge, wharf, dock, pier, fence, wall or screen or other permanent erection or any machinery so erected or constructed as to be or become a part of the freehold upon which it is situated.

(2) In or about the improving or equipping of any house or building with chandeliers, brackets wires, pipes or appurtenances for supplying gas, electric or other light, water or heat.

(3) In the dredging, digging, excavating, constructing or equnping any channel, well, cellar, vault, fountain, fishpond, trench, or tunnel.

(4) In the filling, dredging, improving digging, driving or removing piles in any water or watercourse, any waterlot, meadow, marsh, swamp or other low lands;

(5) In the making or repairing of any walk, sidewalk, crosswalk, curbing or apron;

(6) In grading, graveling, leveling or otherwise constructing or repairing any street, alley, roadway or gutter upon land, irrespective of any easement on or over said land;

(7) Or in setting out or planting any hedge, or fruit or ornamental trees.

Such а lien extends to the interest of the person causing the work to be done in the property and to the land upon which it is situated, not exceeding 40 acres if wholly in towns and 1 acre if entirely or partly in incorporated cities and villages. Such lien is prior to any other lien which originates subsequent to the commencement of the work and also to any unrecorded mortgage of which the person claiming the lien has no notice. If machinery is installed in a building upon order of some person who has no interest in the property sufficient for a lien, the person furnishing the same retains a lien in the machinery and may remove it, if there is default in payment but must leave the building in as good condition as it was before the machinery was installed.

A lien is also given to a principal contractor upon land which he has prepared or caused to be prepared for use. If the work done consists of the building of a continuous roadbed, or of a single structure or plant, which extends over more than 1 acre in cities and villages and over more than 40 acres in towns, then the lien extends to the interest of the principal in the entire property. The same provision applies to the grading, filling and leveling of land and to the building of streets, alleys, gutters, etc.,

in cities and villages, but no lien exists when the work is done under contract for any city or village.

Where property is leased or held under contract of sale, the lien granted by this section does not extend to the interest of the owner, unless the work was done under an express agreement in which the owner assumed responsibility therefor.

An assignment of a claim to a lien or garnishment by creditors does not operate to compel the owner to pay the assignee or creditor until the claims of subcontractors and employes under section 3315 shall either have matured by notice or expired by lapse of time. If such claims become liens, the owner is compelled to pay such assignee or creditor only what may remain due in addition to such liens.

Subcontractors' and laborers' liens. Section 3315. 1. Every person, firm, corporation or association other than a principal contractor, who performs by himself or by his beast of burden any work or labor or furnishes any materials in any of the cases enumerated in the preceding section, shall within thirty days after performing the first work or labor or furnishing the first materials give notice in writing to the owner of the property upon which such work or labor is being performed or to which such materials are being furnished either by personal service on the owner or his agent or by letter addressed to such owner or his agent at the last known post-office address of such owner or agent, with postage duly prepaid, stating that he has been employed to perform work or labor or to furnish materials, describing the real estate upon which the same is to be peformed or furnished with reasonable certainty so that the owner will not be misled or deceived thereby. In the event that the owner of the property shall complain of any insufficiency of such notice should a lien be afterward claimed against said real estate, the burden of proof shall be upon such owner to show that he has been misled or deceived by such insufficiency thereof. In case the property to be affected by such notice is owned Jointly or in common by two or more persons, the giving of such notice in the manner herein provided to any one of such owners, or his agent, shall be sufficient. Every contractor, whether as principal contractor or otherwise, at the time he purchases or contracts for any materials to be used in any of the cases enumerated in section 3314 of the statutes, shall deliver to such materialman a description of the real estate upon which the materials are to be used and the name of the owner thereof and his agent if any.

2. Every person, firm, corporat on or association, other than the principal contractor. who performs by himself or by his beast of burden any work or labor or furnishes any materials in any of the cases enumerated in the preceding section shall have the lien and remedy given by this chapter if he shall have given to the owner the notice provided in subsection 1 hereof, and if within sixty days after the date of performing the last work or labor or of the furnishing of the last of such materials he shall file in the office of the clerk of the circuit court of the county in which said real estate is situated, together with a copy of such notice, a claim or lien, setting forth that he has been employed by such principal contractor or subcontractor to perform or furnish, and has performed or furnished, such work, labor or materials, with a statement of the labor performed or the materials furnished, the amount owing therefor from such principal contractor or subcontractor and that he claims the lien given by this chapter. The thirty-day notice herein required to be given to the owner by any person, firm, corporation

or association other than the principal contractor who performs any work or labor or furnishes any materials shall not be construed to mean that any laborer or mechanic employed by any principal contractor or subcontractor shall be required to give said notice, and such laborer or mechanic may have such right of lien provided by this chapter, if he shall within sixty days after the performance of the last work or labor file in the office of the clerk of the circuit court of said county his claim for a lien in the manner herein provided.

3. All moneys paid by the owner to the principal contractor shall be and constitute a trust fund in the hands of such principal contractor, to the amount of all claims due from or owing by such principal contractor for work, labor and materials or to become due from or owing by such principal contractor for such work, labor and materials to persons entitled to a lien under this chapter aga'nst said owner and his property until all such claims have been paid; the using of such moneys by such principal contractor for any purpose other than the payment of such claims, until all such claims except those which may be in dispute, have been paid, is hereby declared to be an embezzlement of said moneys punishable as provided by law in case of embezzlement.

4. In all cases where a lien shall be filed under the provisions of this chapter by any person other than the principal contractor, it shall be the duty of such principal contractor to defend any action brought thereupon at his own expense, and during the pendency of such action the owner may withhold from the contractor the amount of money for which such lien shall be filed and in amount sufficient to defray the costs and expenses of said action; and in case of judgment against the owner or his property upon the lien he may deduct from any amount due by him to the contractor the amount of such judgment, and if he shall have settled with the contractor in full, may recover from him any amount so paid for which the contractor was originally liable.

5. And any contractor or any person furnishing materials under him who shall purchase materials on credit and represent at the t'me of making the purchase that the same are to be used in a designated building or other improvement and shall thereafter use or cause to be used the said material in the construction of any building or improvement other than that designated, without the written consent of the person from whom the materials were purchased. shall be punished by imprisonment in the county jail for not more than three months or by a fine of not exceeding three hundred dollars.

6. The provisions of this section shall also apply to all cases where improvements are being placed upon real estate by any person holding such land under any contract of lease. demise, or contract for the purchase or sale thereof, but in that case the lien shall attach only to the interest of such person in said real estate unless the owner of such property shall authorize or approve of the same.

Lien valid notwithstanding stipulation. Section 3315a. The lien given by section 3315 of these statutes shall be valid, any stipulation contained in the contract between the owner and the principle contractor or between any other persons who may have a lien thereunder to the contrary notwithstanding.

Claims assignable; prior payment. Section 3316. All claims for liens and rights of action to recover therefor under this chapter shall be assignable so as to vest in this assignee all rights and remedies herein given, subject to all defenses thereto that might be

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made if such assignment had not been made. Notice in writing of such assignment together with a copy thereof, shall be served upon the owner of the property affected by such claim for lien within fifteen days after such assignment is made; and all payments made by such original owner, before service of such notice of assignment, shall discharge his original debt to the amount so paid.

Taking note not a waiver. Section 3317. The taking of a promissory note or other evidence of indebtedness for any such work, labor or materials done or furnished shall not discharge the lien therefor hereby given unless expressly received as payment therefor and so specified therein.

Filing claim and beginning action. Section 3318. No lien hereby given shall exist and no action to enforce the same shall be maintained unless within sixty days in all cases provided for in section 3315 and within six months in all other cases from the date of the last charge for performing such work and labor or of the furnishing of such materials a claim for such lien shall be filed as hereinafter provided in the office of the clerk of the circuit court of the county in which the lands affected thereby lie and such action be brought and summons and complaint filed within one year from such date, unless within thirty days next preceding the expiration of such year the person who filed the len or his agent, attorney or assignee shall make and annex to the instrument on file an affidavit setting forth the interest which the lien claimant has by virtue of such lien in the property therein mentioned, upon which affidavit the clerk shall indorse the time of its filling. The effect of such affidavit shall not continue beyond one year from the time when such lien would otherwise cease to be valid, and action shall not be maintained after said additional period of one year unless action be brought and summons and complaint filed within the said period. Such claim for lien may be filed and docketed within such sixty days or within such six months, as the case may be, notwithstanding the death of the owner of the property affected thereby or the person with whom the original contract was made, with like effect as if he were then living.

Docket of liens. Section 3319. (Summary). Prescribes how entries shall be made in "lien dockets" by clerks of circuit courts.

Claim for lien. Section 3320. (Summary). Prescribes what must be recited in claims for liens. Such claims do not have to be verified and may be amended.

Foreclosure of lien; parties; effect of change of venue. Section 3321. (Summary). Prescribes manner in which liens may be foreclosed.

Complaint. Section 3322. (Summary). Relates to what must be contained in complaints in action for the foreclosure of liens.

Nature of action. Section 3323. Such actions shall be deemed equitable and any issue of fact therein may be referred by the court as in other cases.

Judgment. Section 3324. (Summary). Prescribes what judgments in foreclosure actions shall provide, including provisions for the sale of the property or part thereof to satisfy the lien and costs. If in such an action the plaintiff establishes a right to recover upon

contract but does not prove a lien, he may have a personal judgment against the party liable for the amount due him.

Distribution of proceeds of sale. Section 3325. From the proceeds of such sale the several claimants whose liens were established and adjudged in the action shall be paid equally and alike, without priority among themselves; and if the sum realized at such sale shall be insufficient, after paying the costs of the action and the costs of making the sale, to pay the full amount adjudged to be due all such claimants then the same shall be distributed and paid to each of them in the proportion which the sum adjudged to each bears to the whole amount adjudged to all, and the judgment shall so direct.

Sale; notice and report of; writ of assistance. Section 3326 (Summary). Prescribes procedure to be followed by the sheriff or referee in selling real estate under judgments upon liens. The deed given in such sales conveys to the purchaser all the interests of the owner. Such purchasers may have writs of assistance to obtain possession of the premises.

Satisfaction of judgment of lien. Section 3327. Every person who has received satisfaction or tender of his debt, with the costs of any action brought thereon or any judgment recovered therefor, for which he has filed any such claim for lien, shall at the request of any person interested in the premises affected thereby or in having such lien removed, on payment of the costs of satisfying the same, execute and deliver by him or his attorney the necessary acknowledgment of satisfaction thereof; on filing which with the clerk of the court with whom such lien is docketed such clerk shall enter satisfaction of such claim; or the lien claimant may enter the same satisfied on the docket of such lien. On failure to so execute and deliver such acknowledgment of satisfaction or to so satisfy such lien on the docket the person refusing shall be liable to pay to the person requiring such acknowledgment a sum equal to one-half of the sum claimed in his claim for lien, to be recovered by action.

Bonds to protect the state and its political sub-divisions against claims for labor or materials. Section 3327a. (Summary). All contracts for public work of any kind made by the state or its political sub-divisions must contain a provision for the payment by the contractor for all labor and materials used. Contractors must also furnish an approved bond in a penal sum of not less than the contract price, conditional upon the faithful performance of the contract and the payment of all claims for work or materials. Parties in interest may, within one year after the completion of the contract, maintain an action against the contractor and his sureties for damages resulting from failure to comply with the conditions of the contract.

Actions by sub-contractors against counties and other political sub-divisions. Section 3328. (Summary). Sub-contractors may maintain an action for unpaid claims for labor or material furnished in connection with any public work against the principal contractor and the political sub-division of the state for which the work was done. The county, etc., need not defend the action, if it gives notice to the principal contractor, and the judgment against it cannot exceed the amount due from it to the principal contractor and payment thereof discharges its debt to the principal contractor to the amount so paid. A bond may be filed by the principal contractor,