3. MANDAMUS TO COMPER ACCEPTANCE OF OFFICE.—A person duly elected
or appointed to a public municipal office who refuses to qualify and as-
sume the duties of such office upon notice of his election or appointment
may be compelled to do so by writ of mandamus, without any formal
demand upon him to accept the office, notwithstanding the fact that a
statute provides a penalty for his refusal to accept. People v. Williams,
514.
POWER OF COURTS TO DECLARE THEM TO BE PUBLIC.-If a market has
not been established by municipal authority or by virtue of a market
franchise by the state such market cannot be deemed, merely because of
the magnitude of the business carried on therein, to be impressed with
a public use, so as to be held by the courts to be a public market in that
sense, and subject to the rules of a public policy peculiar to that class
of markets. American Live Stock Co. v. Chicago Live Stock Exchange,
1. DIVORCE-ALIMONY-LEWD LIFE AS Bar to.-A wife who leads a lewd
life, yielding her person to the embraces of different men, has no claim
upon her husband for support and maintenance or alimony when divorce
is granted to the husband on account of her misconduct. A court abuses
its discretion in granting the wife alimony in such a case. Spaulding v.
Spaulding, 534.
2 JUDGMENT OF DIVORCE, WHEN WILL NOT BE VACATED ON PETITION.
When a woman who has been divorced on the ground of desertion
brings suit after her husband's death to recover a widow's part of his
estate, averring that the decree of divorce is a nullity for the reason
that she had no notice of the proceedings against her, and that, although
she abandoned her husband, she was forced to do so by his cruel treat-
ment, and, issue having been joined on these averments, it appears not
only that she had actual knowledge of the pendency of the proceedings,
but that, if she had made her defense, her husband would have been
entitled to a decree in his favor, the equity of the case is against her,
and the judgment of divorce, even if erroneous, cannot be reopened and
vacated upon a petition in a court of chancery. Carr v. Carr, 614.
See DOWER, 1; HUSBAND ANd Wife, 1.
MARRIED WOMEN.
See INFANTS, 4, 5.
See DAMAGES, 3; Negligence, 5–8; Railroads, 15; SURETYSHIP, 13.
1. NOTICE OF CLAIM.-A notice of a mechanic's lien, describing the property
as all of a certain lot except the west twenty feet thereof, is insufficient
when the building also occupies a portion of another lot, although it is
also described by a certain name and as being located at the northwest
corner of two streets. Whittier v. Stetson etc. Mill Co., 149.
2 NOTICE OF CLAIM-MISTAKE IN.-A mechanic's lien for material used
in a building constructed by owners of adjoining lots, under one con
tract, the material being furnished under the supposition that it is for
the entire building as the property of the owner against whom the
elaim is filed, is not void because it covers some material not used in
the part of the building described, but used in the part belonging to the
other owner.
The claimant has a valid lien for the material furnished
for and used in the part of the building described, and may recover
therefor against the party named in the claim by remitting for the re-
mainder not used in his part of the building. Whittier v. Stetson etc.
Mill Co., 149.
3. NOTICE OF CLAIM-INSUFFICIENCY OF DESCRIPTION of property in one
part of a mechanic's lien claim is cured by a description in correct form
in a subsequent part of such claim. Whittier v. Stetson etc. Mill Co., 149.
4. MECHANIC'S LIEN LAW, CONSTRUCTION OF.-While a mechanic's lien law
is favored and the remedial laws for its enforcement should be liberally
construed, they should not be so construed as to include persons not
enumerated in the statute. Thompson v. Baxter, 85.
5. CONSTRUCTION OF.-A statute creating a right to a mechanic's lien is in
derogation of the common law, and must receive a strict construction.
It must not be applied to cases which do not fall within its provisions.
If they are not broad enough, it is the province of the legislature to ex-
tend them. Williams v. Vanderbilt, 486.
6. TO WHAT INTEREST ATTACHES.-The party with whom the contract is
made by a person furnishing labor or materials, is regarded as the
owner of the premises only to the extent of his interest, and that in-
terest only is subject to a mechanic's lien. Hence a tenant for life or
years cannot, by contract, create a lien upon the fee, on the contrary
he can create a lien only to the extent of his right and interest in the
premises. Williams v. Vanderbilt, 486.
7. MECHANIC'S LIEN ON LEASEHOLD.-A material-man's lien for making,
altering, or repairing a building under a contract made with the lessee
of the premises extends to the leasehold interest only. Williams ▾.
Vanderbilt, 486.
8. MECHANIC'S LIEN ON LEASEHOLD-REPAIRS-CONSTRUCTION OF STATUTE.
A statute conferring a mechanic's lien upon a leasehold interest in land,
must be construed with reference to the common-law rule, that the bur.
den of repairs is cast upon the tenant, and that the landlord is under
no implied obligation to make them. Williams v. Vanderbilt, 486.
9. MECHANIC'S LIEN ATTACHING TO LEASEHOLD ESTATE is subject to ali
conditions of the lease, and may be defeated by a forfeiture under the
express conditions thereof. Williams v. Vanderbilt, 486.
10. MECHANIC'S LIEN ON LEASEHOLD-SUBJECT TO ARREARS OF RENT.-When
a lease for years has been forfeited for nonpayment of rent under the
express conditions of the lease, a holder of a mechanic's lien upon the
premises must pay all arrears of rent to the lessor before he can ac
quire the rights of the lessee thereunder, even by purchase. Williams
v. Vanderbilt, 486.
11. A SUPERVISING ARCHITECT employed to draw plans and specifications,
solicit bids for, and to supervise the construction of, a building is not
entitled to a lien thereon under the statute conferring a right to a lien
on all persons doing any portion of the work, or furnishing any portion
of the material, in the construction of a house or other building. Thomp
son v. Baxter, 85.
12. A SUBCONTRACTOR'S RIGHT TO FILE A LIEN CANNOT BE DESTROYED ex.
cept by an express covenant against liens by either the contractor or
AM. ST. REP., VOL. XXXVL-65
subcontractor, or such a covenant so clearly implied that a mechanis
or material-man cannot fail to understand it. Cresswell Iron Works v.
O'Brien, 30.
13. A SUBCONTRACTOR IS NOT PRECLUDED FROM OBTAINING A Liex by a
provision in the principal contract that the contractor will not suffer
or permit any lien by any person to be put and remain upon the build.
ing, and that any such lien, until it is removed, shall preclude any and
all claim and demand for any payment under this contract, and that the
last installment shall not be payable unless, in addition to the archi
tect's certificate, a full release of all claims and liens for all work done
and all materials furnished has been delivered by the contractor. Cress.
well Iron Works v, O'Brien, 30.
14. PROCESS-SERVICE AS COMMENCEMENT OF ACTION TO PRESERVE LIEN.—
In an action to enforce a mechanic's lien service of summons on the owner
of the premises within two years, as prescribed by statute, will not pre-
serve the lien as against other defendant lienholders, not served with
summons until after the expiration of the two years. Smith v. Hurd,
661.
15. PROCESS-SERVICE AS COMMENCEMENT OF ACTION TO FORECLOSE ME-
CHANIC'S LIEN.-One entitled to defend against a mechanic's lien may
show that it is not a lien against his interest because the lien has expired
or the remedy upon it has been lost by lapse of time before the action
was commenced as to him. Smith v. Hurd, 661.
See LANDLORD AND TENANT, 3.
See INFANTS; REFORM SCHOOLS.
See CONSPIRACY, 2; Statutes, 5; Usury.
MISREPRESENTATION.
See FRAUD, 2, 4; MORTGAGES, 4.
WHEN AVOIDS CONTRACT.-A contract induced by a mutual mistake in re-
spect to the subject matter is inoperative, and void. Bedell v. Wilder,
871.
See EVIDENCE, 7; IMPROVEMENTs, 2; Judgments, 10, 14, 15; MECHANIO'S
1. MORTGAGEE IN POSSESSION.-One who enters into the possession of prop-
erty under a mortgage foreclosure, defective in not making the owner of
the fee a party thereto, is entitled to the rights of a mortgagee in pos-
session, and cannot be ousted by an action of ejectment brought by the
owner of the fee whose title is subject to such mortgage. His remedy
is by a suit to foreclose his equity of redemption by an equitable action
to redeem from the mortgage. Croner v. Cowdrey, 716.
UNRECORDED MORTGAGES-EFFECT OF ON CREDITORS.-When by statute
unrecorded mortgages are to be deemed, as an inference of law, fraudu
lent and void as to "subsequent purchasers, lessees, or mortgagees,”
the terms of the statute will not be extended so as to include and pro-
tect the general creditors of the mortgagor. Hutchinson v. First Nat
Bank, 537.
& UNRECORDED Mortgages-EFFECT OF ON CREDITORS OF MORtgagor.—
In the absence of express fraud, the mere failure of a mortgagee to re-
cord his mortgage within the time fixed by statute does not as against
the creditors of the mortgagor, either prior or subsequent, render it
invalid. Hutchinson v. First Nat. Bank, 537.
← MERE FAILURE TO RECORD a mortgage within the time fixed by statute,
whether such failure is in pursuance of a previous contract, or by mere
neglect, is not sufficient of itself to enable the mortgagor's creditors to
avoid such instrument. In such cases the known insolvency of the
mortgagor, active misrepresentation of his financial condition, or other
indicia of fraud, must enter into the transaction in order to render it
void as to creditors. Hutchinson v. First Nat. Bank, 537.
EFFECT OF FAILURE TO RECORD UPON CREDITORS.-Withholding a
mortgage from record in order to maintain the credit of the mortgagor,
is not of itself sufficient to justify a court in holding, as matter of law,
that such mortgage is fraudulent and void as to creditors of the mort-
gagor, either existing or subsequent, but it is a badge of fraud to be
considered with all the facts and circumstances surrounding the trans
action, in determining whether or not there was, in fact, a fraudulent
intent in so withholding the mortgage from record. Hutchinson v. First
Nat. Bank, 537.
6. MORTGAGOR AND MORTGAGEE, FORECLOSURE BY LATTER IN TRUST FOR
FORMER.-If an agreement is made between a mortgagor and mortgagee
that the mortgage shall be foreclosed, the property bid in, a part of it
conveyed to a third person, and the balance to the mortgagor subject
to the mortgage indebtedness, a trust relation is established between the
parties and persons acquiring title under them with notice of the agree
ment. Therefore an assignee of the judgment of foreclosure who pur.
chased the mortgaged premises thereunder will not be permitted to
repudiate the agreement and to hold the property in violation thereof.
Fellows v. Loomis, 17.
7. FORECLOSURE-REDEMPTION-RIGHT OF AGAINST ASSIGNEE OF PUR-
CHASER. The assignee of a certificate of purchase to land on which a
mortgage has been foreclosed occupies no better position in relation to
the property than his assignor, and if a right of redemption exists against
the latter, it exists against the former. O'Brien v. Moffitt, 566.
8. FORECLOSURE-FORFEITURE OF PRIMARY SECURITY-EFFECT ON SECOND-
ARY SECURITY.-If the holder of a mortgage secured by primary security
forfeits his right to foreclose it by permitting an adjudication which
estops him from pursuing it, he is also estopped from enforcing the mort.
gage against secondary security held by him. O'Brien v. Moffitt, 566.
9. FORECLOSURE-PARTIES-CONCLUSIVENESS OF JUDGMENT BY DEFAULT. —
All persons claiming an interest in mortgaged premises are proper, if
not necessary, parties to a suit in foreclosure, and when made parties,
a judgment by default is conclusive upon the judgment defendants as
to every matter admitted by the default and adjudicated by the judg.
ment. O'Brien v. Moffitt, 566.
. FORECLOSURE-Default.-If one is made a party to a suit to foreclose
a mortgage in which it is alleged that he claims some interest in the
property, and the relief sought against him is to foreclose his equity of
redemption, if he have such interest, he is required thereby to assert
his interest, and, failing to do so, he is precluded by the decree of fore-
closure against him. O'Brien v. Moffitt, 566.
11. FORECLOSURE BY ONE OF SEVERAL MORTGAGEES-EFFECT OF.-A suit
by one of several mortgagees to foreclose, as to his separate note se.
cured by the same mortgage, does not merge the claims of the other
mortgagees, nor preclude them from foreclosing and selling; and the
mortgagor's rights of redemption as to each mortgagee cannot be lost
by several foreclosures as to each mortgagee instead of a united fore.
closure of all the mortgagees. O'Brien v. Moffitt, 566.
12. Forfeiture of Lien-Knowledge of Third Parties as Affecting.
Knowledge of third parties interested in mortgaged property that others
have forfeited their mortgage lien thereon, cannot increase or give new
equities to the latter. O'Brien v. Moffitt, 566.
13. A TENDER OF PAYMENT of a mortgage debt after default, and before the
mortgagee has taken or demanded possession, if kept good, operates to
discharge the lien of the mortgage, and extinguish the title of the mort.
gagee. In such case the mortgagor may recover the mortgaged prop-
erty from a purchaser at a subsequent sale under the mortgage. Maxwel.
v. Moore, 190.
See ASSIGNMENT FOR THE BENEFIT OF CREDITORS, 1, 2; Chattel Mort-
GAGES, 1; DOWER, 2; ESTOPPEL, 2; HUSBAND AND WIFE, 9; RECEIVERS,
2; TAXES, 2; Warehousemen.
1. USE OF STREETS FOR PRIVATE PURPOSES.-A city, acting under special, as
well as general, authority in granting a permit to a private person to
construct vaults under its streets or alleys, and requiring compensation
therefor, acts in its private corporate capacity, as distinguished from its
public and political or governmental capacity, and the rules applicable
to the exercise of its public political powers do not apply. Gregsten v.
Chicago, 496.
2. PERMIT FOR PRIVATE USE OF STREET WHEN CONSTITUTES CONTRACT.—
A city, acting under special, as well as general, authority in granting a
permit for, and regulating the construction of, vaults under its streets
and alleys not inconsistent with their use by the public, and requiring
compensation therefor, acts in its private corporate capacity, and when
such permit is accepted and acted upon by the holder, by making costly
improvements required, it constitutes a contract between the parties,
irrevocable at the mere will of the city. Gregsten v. Chicago, 496.
3. USE OF STREETS FOR PRIVATE PURPOSE-APPROVAL OF PERMIT.-The
approval by the city council of a permit granted by the city's agents to
a person to construct a vault under a street or alley is presumed from
the acts of the permit holder in constructing the vault at great expense,
and its use and occupation by him for twenty years without objection
on the part of the city, especially when such occupation inures to the
benefit of the city, which it receives with knowledge of the right
claimed by the occupant. Gregsten v. Chicago, 496.
4. PERMIT FOR PRIVATE USE OF STREET-RIGHT OF CITY TO REVOKE.
When a person constructs and maintains a costly vault under an alley
or street by authority of a permit regularly given by a city, providing
that he is not to be taxed as rent for the vault in excess of the tax on
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