(51 Pac. Rep. 649). Where two contractors furnish labor and material towards the erection of an improvement on real estate in pursuance of separate contracts with the owner thereof, and one of said contractors files his claim for a lien under the statute, and then brings suit to have such lien established and foreclosed, the other contractor is a proper and necessary party to such suit, although at the time the action was brought he had not filed his claim for a lien; and the decree in such a case is a nullity as to the contractor not made a party, who may subsequently enforce his lien, although at the time of filing his lien claim he had knowledge of the pendency of the prior action. Wakefield v. Van Dorn, 53 Neb. 23 (73 N.W. Rep. 226). Citing, Steigleman v. McBride, 17 Ill. 300; Kelley v. Chapman, 13 Ill. 530; Whitney v. Higgins, 10 Cal. 547 (70 Am. Dec. 748); Jones v. Hartsock, 42 Ia. 147.

Sec. 562. Enforcement of lien-Defenses. Where a purchaser of property from a corporation defends against a lien sought to be enforced under a contract with it, he may show that the contract was not legally binding on the corporation. Des Moines Mfg. & Supply Co. v. Tillford Milling Co., 9 S. Dak. 542 (70 N. W. Rep. 839). Where the contract requires the work to be in perfect order when finished, no lien can be enforced where the contractor has substituted work or materials so defective as to be practically useless, although no objection was made by the supervising architect. Monahau v. Fitzgerald, 164 Ill. 525 (45 N. E. Rep. 1013). The objection that the lien claimant is not entitled to enforce his lien because he does not show an architect's certificate of the performance of his work according to the contract as provided for in the contract, is waived, where the owner does not raise it by his pleadings and puts in issue, by other allegations, the question of the proper performance of the work. Healy v. Fallon, 69 Conn. 228 (37 Atl. Rep. 495). Where it appears that the plaintiff was entitled to receive a certain amount, after deducting damages caused by deviations from the contract, at a certain time, interest may be allowed him as damages for the detention of this amount, from the date it was due to the date of the judgment. Healy v. Fallon, 69 Conn. 228 (37 Atl. Rep. 495). Particular affidavit of defense

held sufficient.

Thomas v. O'Donnell, 183 Pa. St. 145 (38 Atl. Rep. 597). An answer by a subcontractor in the nature of a cross bill, is not fatally defective because it fails to allege that the owner has made payments to the principal contractor in violation of the statute. Mich. Laws 1891, Act 179, §§ 1, 4, applied. Smalley v. Ashland Brown-Stone Co., 114 Mich. 104 (72 N. W. Rep. 29). Mich. Acts 1891, No. 179, § 10, construed and applied-filing of cross complaint. Smalley v. Northwestern Terra-Cotta Co., 113 Mich. 141 (71 N. W. Rep. 466).

Sec. 563. Enforcement of lien-Statute of limitations. The commencement of an action to foreclose a mechanic's lien against the owner of the property does not preserve the lien as against other lienholders or incumbrancers beyond the statutory period for bringing such an action. Falconer v. Cochran, 68 Minn. 405 (71 N. W. Rep. 386). The statute of limitations begins to run against the enforcement of a mechanic's lien from the time of filing the claim of lien. Pardue v. Missouri Pac. R. Co., 52 Neb. 201 (71 N. W. Rep. 1022; 66 Am. St. Rep. 489). Applying Oklahoma statute, providing that any owner shall not be liable to an action by any contractor until the expiration of sixty days from the time of the completion of the work or the furnishing of materials, it is held that if an action is brought within the sixty days, and the owner, instead of promptly making objection by proper motion or plea, which can be determined before the merits of the action are tried, presents issues upon the merits of the case, included within his denial and counterclaim for damages, and proceeds to the trial of the case upor the merits, he cannot thereafter be heard to assert that the action was brought too soon. El Reno Elec. Light & Telep. Co. v. Jennison, 5 Okla. 759 (50 Pac. Rep. 144). Me. Rev. Stat., ch. 91, §§ 34, 35, construed and applied-time given for commencement of action to enforce lien-extension on account of insolvency proceedings against debtor. Laughlin v. Reed, 89 Me. 226 (36 Atl. Rep. 131). R. I. Gen. Laws, ch. 206, §§ 5, 7, 9, construed and applied--time within which action to enforce lien may be brought. Goff v. Hosmer, 20 R. I. 91 (37 Atl. Rep. 533); Birtwell v. Hosmer, 20 R. I. 309 (38 Atl. Rep. 946).

Sec. 564. Enforcement of lien-Amendments. After the expiration of the time allowed for the filing of a lien, a claim for a lien and the complaint to enforce it against a tenant's leasehold estate cannot be amended so as to assert a claim against the landlord's interest in fee. 7. B. Alfree Mfg. Co. v. Henry, 96 Wis. 327 (71 N. W. Rep. 370). Under the statute of Oklahoma, it is held that a defective verification of a lien statement may be amended; and where the property was described in a mechanic's lien as being "lots 17 and 18 in block 103 in the Foreman addition to the city of El Reno, Canadian county, Oklahoma Territory," it is held that it was proper for the court, on the trial of the case a year afterwards, to permit an amendment showing that this was property of the same description in the city of El Reno, instead of Foreman's addition to the city of El Reno, it being found by the court that there was at that time no Foreman's addition to the city of El Reno, but that there was such property by a former plat, and that these lots in this block, by their later description, were the same property as were formerly platted by the first, and erroneous, description. El Reno Elec. Light & Telep. Co. v. Jennison, 5 Okla. 759 (50 Pac. Rep. 144). Mass. Pub. Stat., ch. 191, § 20, applied-amendment of petition. Dodge v. Hall, 168 Mass. 435 (37 N. E. Rep. 110). Mich. Acts 1891, No. 179, §§ 10, 27, construed and applied— amendments. Smalley v. Northwestern Terra-Cotta Co., 113 Mich. 141 (71 N. W. Rep. 466).

Sec. 565. Enforcement of lien-Personal judgment. A subcontractor having no privity of contract with the owner is not entitled to a personal judgment against him. Hume v. Robinson, 23 Col. 359 (47 Pac. Rep. 271). Under Mont. Comp. Stat. 1887, div. 5, § 1383, a personal judgment cannot be rendered against the defendant served by publication only and who has not appeared. Richardson v. Lewisohn, 19 Mont. 128 (47 Pac. Rep. 645). In Oregon it is held that the supreme court has no jurisdiction on an appeal in a suit to foreclose a mechanic's lien, to enter a decree for any sum in excess of that found to be a lien upon the property described. Allen v. Elwert, 29 Or. 428 (48 Pac. Rep. 54).

515

EPITOME OF CASES.

§ 566, 567

Sec. 566. Enforcement of lien-Evidence. Evidence that a married woman knew of the construction of improvements on her real estate, assisted in the selection of the materials, gave directions as to the work, and evinced an expectation to pay therefor, is sufficient to sustain a decree enforcing a mechanic's lien for such improvements. Foskett & Bishop Co. v. Swayne, 70 Conn. 74 (38 Atl. Rep. 893). Utah Comp. Laws, §§ 3252, 3253; Laws 1890, p. 27, § 14, applied in a particular case in which the variance between allegations and proof was held immaterial. Culmer v. Clift, 14 Utah 286 (47 Pac. Rep. 85). For cases determining particular questions of evidence in actions to enforce mechanic's liens, see Johnson v. Puritan Min. & Milling Co., 19 Mont. 30 (49 Pac. Rep. 337); Justis v. Myers, 68 Minn. 481 (71 N. W. Rep. 667).

Sec. 567. Enforcement of lien-Miscellaneous notes-Statutes construed. It is error to allow attorney's fees upon a judgment by default where no demand was made for them and no allegation in reference to them was contained in the bill. Price v. Boden, 39 Fla. 218 (22 So. Rep. 657). A mechanic's lien may be asserted by a cross complaint. Smalley v. Ashland Brown-Stone Co., 114 Mich. 104 (72 N. W. Rep. 29). To sustain an action to foreclose a mechanic's lien, it must appear in evidence that the statement of the claim therefor has been filed with the proper officer of the county within the time prescribed by the statute. Cummins v. Vandeventer, 52 Neb. 478 (72 N. W. Rep. 955). Where the joint and several contract of several contractors provides that the workmanship and materials are to be "to the full and complete satisfaction" of a certain named superintendent who was, as a condition precedent to the contractors receiving payment, required to certify in writing that such contractors were respectively entitled to receive payment, a lien cannot be enforced where this condition is not shown to have been complied with. Forster Lum. Co. v. Atkinson, 94 Wis. 578 (69 N. W. Rep. 347). A subcontractor having the right to foreclose a mechanic's lien and recover personal judgment against the contractor in the same action, may have a judgment foreclosing his lien, although he is not entitled to a per

sonal judgment on account of failure to get personal service on the contractor. O'Rourke v. Butte Lodge No. 14, I. O. G. T., 19 Mont. 541 (48 Pac. Rep. 1106). Where demands due at separate times are included in a mechanic's lien, and parts of the lien described were due at the time the action was brought and part not due, no objection being made, the court may render judgment for the amount which was not due at the time the action was brought but subsequently fell due and was unpaid when the decree was rendered. El Reno Elec. L. & Telep. Co. v. Jennison, 5 Okla 759 (50 Pac. Rep. 144). Where the general owner of a building made a contract for labor and materials for its construction, and in answer to an action to enforce a lien claim therefor, appeared in court to defend against the suit, there being no suggestion of insolvency of the defendant or that any other person had an interest in the property, no other or further notice is required, and a judgment properly entered in such a proceeding binds the property as against an assignee in insolvency of the defendant subsequently appointed. Laughlin v. Reed, 89 Me. 226 (36 Atl. Rep. 131). Where several principal contractors "jointly and severally" agree to build, furnish and complete a building and pay all claims which might become liens thereon, the payment of such claims is a condition precedent to the enforcement of a lien in favor of any such contractors. Forster Lum. Co. v. Atkinson, 94 Wis. 578 (69 N. W. Rep. 347). As to the rights of a nonsuited plaintiff where several actions to enforce liens are consolidated, see Kennedy & Shaw Lum. Co. v. Dusenbery, 116 Cal. 124 (47 Pac. Rep. 1008).

Construing and applying Ala. Code 1886, § 3262, it is held that in an an action to enforce mechanics' liens against the interests of several cotenants, the court may order a sale and partition of the land. Hines v. Chicago Bldg. & Mfg. Co., 115 Ala. 637 (22 So. Rep. 160). In enforcing an attachment for mechanic's lien against a building on leased lands it will be treated as personal property. Me. Rev. Stat., ch. 81, § 26, applied. Laughlin v. Reed, 89 Me. 226 ( 36 Atl. Rep. 131). Mo. Rev. Stat. 1889, §§ 2057, 2075, applied—right of defendant to require definiteness of statement of account Mitchell Planing Mill Co. v. Allison, 138 Mo. 50 (40 S W. Rep. 118; 60 Am. St. Rep. 544). N. Y. Laws 1885, ch