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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. 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. 113.

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 Moore, 53 Tex. 224.

v.

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. 7. Elder, 51 Miss. 495; Murray v. Rapley, 30 Ark. 568; Brennan v. Swasey, 16 Cal. 141; Roberts v. Wilcoxen, 36 Ark. 355.

4. Walker υ. Hauss-Higo, 1 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 v. Tearney, 8 S. & R. (Pa.) 58; Ehler's Admr. v. Elder, 51 Miss. 495; Porter v. Niles, 67 Ala. 132; Hall v.

Hinckley, 32 Wis. 362; Jones v. Alexander, 10 S. & M. (Miss.) 627; Sutherland v. Ryerson, 24 Ill. 517; Brady v. Anderson, 24 Ill. 110; Cronkright v. Thomson, I E. D. Smith (N. Y.) 661; Tomlinson v. Degraw, 26 N. J. L. 73; Foster v. Poillon, 2 E. D. Smith (N. Y.) 556; Mushlitt v. Silverman, 50 N. Y. 360; Carney v. Tully, 74 Ill. 375; Way v. Harris, 77 N. Car. 77: Farmers' Bank v. Winslow, 3 Minn. S6; s. c., 74 Am. Dec. 740; Moore v. Martin, 58 Ga 411.

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 Ill. 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 v. City Fire Ins. Co., 12 Iowa 371; Franklin Fire Ins. Co. v. Coates, 14 Md. 285; Longhurst 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.

υ.

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, II N.

Y. Eq. 321.

No lien can be obtained upon public

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 de

fendant'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. Stettler, 26 Pa. St. 246.

2. Relation to Other Liens.-There are two liens recognized by the common law, to wit: A general and a particular lien. Á general lien is the right to retain the property of another for a general balance of accounts; but a particular lien is a right to retain it only for a charge on account of labor employed, or expenses bestowed upon the identical property detained.1 A mechanics' lien is analogous to the particular lien at common law, and is in its nature peculiar and of an equitable character;2

If the lien was allowed to continue after the building had been destroyed, those who would erect a new building on the premises would have no protection and further improvements might be prevented. So if the building for which the materials were furnished or labor done be consumed before a mechanics' lien is filed, the ground upon which such building was erected and all further buildings upon it are discharged from such lien. Phillips on Mech. L., § 12; Presbyterian Church v. Stettler, 26 Pa. St. 246.

But in Freeman v. Carson, 27 Minn. 516, it was held that a mechanics' lien for labor performed and materials furnished and used for the repairing of a building, is not terminated by the destruction of the building by fire after the performance and furnishing of such labor and materials, but before the "account," provided for by statute. is filed for record; but may, notwithstanding the destruction of the building, be enforced against the land on which it was situated.

So in McLaughlin v. Green, 48 Miss. 175, it was held that where a building was destroyed by fire the mechanics' lien adhered to whatever iron or other debris remained. So in Gaty v. Casey, 15 Ill. 189, the court held that if the materials used in erecting a building were severed from the freehold, the line was not thereby destroyed, and that a court of equity will treat the money derived from their sale, as it would the property before it was sold, and will pursue it into the hands of the party who ha converted it into money. See also Steigleman v. McBride, 17 Ill. 300.

In Clark v. Parker, 58 Iowa 509, ADAMS, J., said: "The reason given is that the object of the mechanics' lien law is to encourage improvements, and that if a lien were held to remain upon the land after the improvements had been destroyed or removed it would discourage the improvement of the land, and so operate to defeat the object

of the law. But to our minds the principal object of the law is to provide security for a class of persons whose claims gradually accumulate from day to day, and who cannot conveniently protect themselves in any other way. As the lien by express provision attaches from the outset upon the land as well as upon the improvements, and rests alike upon both, we think it must be held to remain upon the land after the improvements have been destroyed or removed." Steigleman v. McBride, 17 Ill. 301.

In Paddock v. Stout, 121 Ill. 571, it was held that upon the burning of a mill, the lien for work and machinery attaches to any proceeds realized from the sale of the remains of the mill.

Injunction to Prevent Removal.Subcontractors are entitled to injunction to prevent removal of building which would make their security insufficient. Barber v. Reynolds, 33 Cal. 497.

81.

1. Taggard v. Buckmore, 42 Me. 77,

2. Mochon v. Sullivan, 1 Mont. 470, 472; Taggard v. Buckmore, 42 Me. SI.

"The doctrine upon which it is founded is upon the consideration of natural justice, that the party who has enhanced the value of property by `incorporating therein his labor or materials shall have a preferred claim on said property for the value of said labor or materials. The artificer or business man acquires a qualified property in the thing upon which he has bestowed his time and labor or into which he has incorporated his materials. The very principle upon which his right is grounded comes from the increased value of the property he has brought about by the accession of his labor or materials and is purely an equitable one. And the owner thus benefited holds his property subject to and liable for this equitable claim which grows out of and depends upon this enhanced value of his interest. We are of opinion

owing its origin and duration entirely to statutory enactment.1 The lien of a mechanic differs from the lien of a judgment. The former affects only the real estate on which the work is done while the latter affects all the defendant's real estate. A mechanics' lien is more in the nature of a mortgage.3 It resembles a mortgage in that it will not affect the rights of the wife, unless she so co-operates with her husband as to bind her estate.4

II. WHAT SUBJECT TO LIEN.-The land as well as the buildings are subject to a mechanics' lien5 to the extent of whatever interest the person contracting as owner may have.

that this lien, being an equitable right or in the nature of an equitable right, must be enforced in conformity to the established rules and principles govern ing proceedings in chancery." MURPHY, J., in Mochon v. Sullivan, 1 Mont.

470.

1. Ehler's Admr. v. Elder, 51 Miss. 495, 498; Wehr Shryock, 55 Md. 334; Willison v. Douglass, 66 Md. 99, Mushlitt v. Silverman, 50 N. Y. 360; Huxford v. Bogardus, 40 How. (N. Y.) Pr. 94; Grant . Vandercook, 57 Barb. (N. Y.) 165; s. c., 8 Abb. Pr. (N. S.) 455; Benton v. Wickwire, 54 N. Y. 226; White Lake Lumber Co. v. Russell, 22 Neb. 126.

2. Freeman v. Cram, 3 N. Y. 305. 3. Ritter v. Stevenson, 7 Cal. 388; Goodman v. White, 26 Conn. 317.

A mechanics' lien stands upon thesame ground as a mortgage would stand if executed at the same time as the filing of the claim, and affects existing rights, whether legal or equitable, to no greater extent than such mortgage would affect them. Kenny v. Gage, 33 Vt. (4 Shaw)

302.

4. Fitch . Baker, 23 Conn. 563. 5. Paulsen v. Manske, 126 Ill. 72; McGreary v. Osborne. 9 Cal. 119; Johnson v. Dewey, 36 Cal. 623; Worden v. Hammond, 37 Cal. 61; Phelps 7. Maxwell's Creek etc. Min. Co., 49 Cal. 336; Mochon v. Sullivan, 1 Mont. 479; Carter v. Humboldt Fire Ins. Co., 12 lowa 287, 292; McGinnis v. Purrington. 43 Conn. 143, 147; Gaty v. Casey, 15 I. 189, 192; Montaudon v. Deas, 14 Ala. 33; Sodini v. Winter, 32 Md. 130: Bailey v. Mason, 4 Minn. 546; Tilford 2. Wallace, 3 Watts (Pa.) 141; Longhurst v. Star Ins. Co., 19 Iowa 364; Wigton and Brooks' Appeal, 28 Pa. St. 161; Presbyterian Church v. Stettler, 26 Pa. St. 246; Sertz v. Union Pac. R. Co., 16 Kan. 133; Judson v. Stephens, 75

III. 255.

6. Paulsen v. Lanske, 126 Ill. 72; Scales v. Griffin, 2 Doug. (Mich.) 54; Montaudon v. Deas, 14 Ala. 33; Hopkins v. Hudson, 107 Ind. 191; Donaldson v. Holmes, 23 Ill. 83; Copley v. O’Niel, 39 How. Pr. (N. Y.) 41; Tritch v. Norton, 10 Colo. 337; Meyers v. Bennett, 7 Daly (N. Y.) 471; Breed v. Nagle, 46 Ga. 112; Evans v. Montgomery, 4 W. & S. (Pa.) 218; O'Conner v. Warner, 4 W. & S. (Pa.) 223.

The lien is upon whatever interest the builder of the superstructure possesses. McGreary v. Osborne, 9 Cal. 119. See Johnson v. Dewey, 36 Cal. 623; Worden v. Hammond, 37 Cal. 61; Phelps. Maxwell's Creek etc. Min. Co., 49 Cal 336.

The interest of an heir in the estate pending the administration will support a mechanics' lien for improvements erected upon the realty. O'Brien v. Hanson, 9 Mo. App. 545.

D built a house upon land which E had agreed to convey to him upon payment of a fixed sum; held, that the plaintiffs, who furnished labor and materials for said house, in pursuance of contracts made with D, could claim no greater or higher interest in the land than D had. Harsh v. Morgan, 1 Kan. 293.

Where a builder acquires, after a building is begun, a lesser interest in land than when it was begun, materialmen may file a claim against such lesser interest. Goldheim v. Clark (Md.), 13 Atl. 363.

But a mechanics' lien can operate upon nothing beyond the right of the person for whom the building is erected. English v. Foot, 16 Miss. 444; Garrett v. Stevenson, 3 Ill. 261.

A builders' lien will not attach to any interest in real estate which defendant did not have when materials began to be furnished. How. Stat., § $377. Nor will filing notice of the lien

Where work is done or materials furnished under the provisions of the mechanics' lien law, they become a part of the land, and together with the ground upon which the improvement is made, form one entire thing, that is real estate; and however many interests there may be in the land and by whatever names they may be known by, all together constitute the land. The lien created by the law is not against the specific thing furnished, nor necessarily against the interest alone in the land and should be satisfied out of the same in any manner consistent with the statutes and the principles of equity. It the person for whom the superstructure is made does not own the land, the lien attaches to whatever interest is owned by him. If the party only owned the superstructure, then the lien would only attach to that; but if he also owned the land, then the lien would embrace that; and any interest in the land which could be sold under execution, as fixtures, would be subject to the lien.3 If the person contracting as owner has an inchoate title, which is perfected pending the improvements, the lien attaches to the interest he then has.4

operate retrospectively. Sisson v. Hol comb, 58 Mich. 634.

A made a verbal contract to purchase a lot of land of B, took possession of it, Statutes. The lien attaches to the erected a building upon it, and failed building or other thing erected and the to pay for the labor and materials which interest of the owner of the building in entered into the construction of the the land on which it stands. Ala. 3440, building. One lien creditor attached 3441; Ariz. 1479; Cal. 11185; Dak. C. the building as personal property and Civ. P. 665; Del. V. 16, 116, 1; Fla. another attached the building with the 3440, 3441, I; Ida. Civ. C. 818; Ind. lot of land as real estate. Held, that 1883, 115, 1; Iowa 2131; Me. 91, 30; the building became a part of the real Mass. 199, 1; Md. 67, 6, 9; Mich. 8377; estate of B, and that as against him Minn. 90, 1; Mon. G. L. 827; Mo. 3172- neither creditor obtained a valid attach3; N. J. Mech. Liens, 4; N. H. 139, 11; ment upon the building. Dustin v. N. Y. 1882, 410, 1807; 1875, 379, 3; 1862, Crosby, 75 Me. 75. 478, 1; 1865, 778, 1; 1880, 143, 1; 486; 1 Nev. 1875, 64, 3: Oreg. 1885, p. 13. § 2; Ohio 3184; Pa. Mech. Liens, 18 and 36; S. Car. 2350, 2381; R. I. 117, 2-3; Utah C. Civ. P. 1060; Va. 115, 2 and 9; Wash. 1959.

In several States the lien attaches to the building and the land by whom it is owned. Miss. 1378; Ind. 1883, 115, 2; Neb. 1885, 62, 1; N. J. Mech. Liens, S; N. Car. 1781; N. Y. 1864, 366, 1; Tenn. 2745; Tex. 3164; Vt. 1983; W. Va. 1882, 64, 2.

In other States the building and the interest of the owner of the land or other person making the contract in the land. Ark. 4402; Ariz. 1885, 93, 3; Col. 2131; Dak. C. Civ. P. 655; Kan. 80, 630; Ky. 70, 1; N. M. 1522; Ill. 82, 2; Wy. 1877, p. 77, §§ 1-2.

1. Steigleman v. McBride, 17 Ill. 300; Van Court v. Bushnell, 21 Ill. 624; Newark etc. Co. v. Morrison, 3 N. J. Eq. 133; Skillin v. Moore, 79 Me. 554.

If but one of several persons who purchased materials for a building own the land, the lien will be good. VanCourt v. Bushnell, 21 Ill. 624. 2. Steigleman v. McBride, 17 Ill. 300. 3. McGreary v. Osborne, 9 Cal. 119; Carpenter v. Leonard, 5 Minn. 155; White v. Chaffin, 32 Ark. 59; Skipwith 7. Dodd, 24 Miss. 487; Ellenwood v. Burgess, 144 Mass. 534.

A person who wrongfully makes improvements on another's land cannot defeat a mechanics' lien on the improvements by showing that he had no right to enter upon the land; neither can a purchaser from him of the improvements. Lane v. Snow, 66 Iowa 544.

4. O'Brien v. Hanson, Mo. App. 545; Chisholm v. Williams, 128 Ill. 115.

Mechanics' lien on equitable estate attaches to after acquired legal title the moment it vests in the same person.

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