Community Property.

§ 129. A statute giving the management and control of community real property to the husband, and providing that such real estate shall be subject to the liens of mechanics, as provided by law in other cases, authorizes the husband to contract for the erection of a building upon such property, and thus subject it to mechanics' liens; 20 and the fact that a wife, who has a community interest with her husband in real estate, is not named as owner in a notice of claim for lien thereon, will not defeat the lien, where it does not appear that the claimant knew of her interest, and she is made a party to the action to foreclose.21

DIVISION II. CHATTELS REAL.

Leaseholds.

§ 130. It was once thought that chattels real were not subject to mechanics' liens, and that there was therefore no lien against a lessee for work and materials furnished for buildings erected by him on the leased premises; 22 but at the present time it is well settled, either by judicial construction or express legislative enactment, that a lessee may create mechanics' liens on his leasehold estate.2 Thus, it is held that under a statute which creates "a lien upon any lot of

23

20 Littell & Smythe Manuf'g Co. v. Miller, 3 Wash. St. 480, 28 Pac. 1035. 21 Bolster v. Stocks (Wash.) 43 Pac. 534.

22 Haworth v. Wallace, 14 Pa. St. 118.

23 Reed v. Boyd, 84 Ill. 66; Lynam v. King, 9 Ind. 3; McCarty v. Burnet, 84 Ind. 23; Hathaway v. Davis, 5 Pac. 29, 32 Kan. 693; Laviolette v. Redding, 4 B. Mon. (Ky.) 81; Montana Lumber & Manuf'g Co. v. Obelisk Mining & Concentrating Co., 37 Pac. 897, 15 Mont. 20; Goldheim v. Clark, 13 Atl. 363, 68 Md. 498; Dutro v. Wilson, 4 Ohio St. 101; Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403; Rush v. Fisher, 8 Phila. (Pa.) 44; Burr v. Graves, 4 Lea (Tenn.) 552; Daniel v. Weaver, 5 Lea (Tenn.) 392; Leismann v. Lovely, 45 Wis. 420. A mechanic's lien acquired on a building for material furnished to a lessee of land on which the same is erected is not restricted to the material furnished, but covers the entire interest of the lessee in the building. Montana Lumber & Manuf'g Co. v. Obelisk Mining & Concentrating Co., 37 Pac. 897, 15 Mont. 20.

ground or tract of land upon which a house has been constructed, built, or repaired, by special contract, with the owner or his agent, in favor of the mechanic," a lessee of land for a term of years who has erected a house upon the demised premises is "the owner," and the mechanic employed upon the house will have a lien upon the term; and that even one who, under an executory oral contract partly performed, has the right to demand a lease for years, is the "owner," against whose estate a mechanic's lien may be enforced.25

24

Where a builder changes his interest in lots from a fee into a leasehold after the erection of the buildings, the material man may file a mechanic's lien against the lesser interest; since, although he cannot have a lien on more than his employer owned when the lien attached, he may file on less.26 It makes no difference in the me

chanic's right to a lien on the leasehold interest in a house and tract of land that part of the land is leased from one owner, and part from another.27 The right to a mechanic's lien on a leasehold estate is limited to cases where it can be enforced without infringing on the rights of the reversioner.28

§ 131. The Pennsylvania statutes do not allow liens on leasehold estates in all cases, but limit them to improvements by tenants for business purposes, thus excluding ordinary dwelling houses.29 A Missouri statute which extended the right of lien to building erections and improvements erected by tenants upon leased premises was held not to give a lien for engines and boilers attached to the property for a tenant.30 In Louisiana, under a statute declaring

24 Alley v. Lanier, 1 Cold. (Tenn.) 540. To the same effect are Currier v. Cummings, 40 N. J. Eq. 145, 3 Atl. 174; Jones v. Manning (Jones v. Crumb). 53 Hun, 631, 6 N. Y. Supp. 338; Choteau v. Thompson, 2 Ohio St. 114; Dutro v. Wilson, 4 Ohio St. 101. It was said in Muldoon v. Pitt, 4 Daly (N. Y.) 105, that the "owner" intended by the statute is the owner of the building, not the owner of the fee in the land.

25 Benjamin v. Wilson, 34 Minn. 517, 26 N. W. 725.

26 Goldheim v. Clark, 68 Md. 498, 13 Atl. 363.

27 Laviolette v. Redding, 4 B. Mon. (Ky.) 81.

28 McCarty v. Burnet, 84 Ind. 27.

29 Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403. This case contains a review of the Pennsylvania decisions on this subject. See, too, Robson's Appeal, 62 Pa. St. 405; Schenley's Appeal, 70 Pa. St. 98; Fisher v. Rush, 71 Pa. St. 43; Schmidt v. Armstrong, 72 Pa. St. 355.

30 Collins v. Mott, 45 Mo. 100.

that, if a "building is erected by a lessee of the ground, the privilege shall exist only against the lease, and shall not affect the owner," it is held that a mechanic's lien attaches to constructions and works erected on the leased premises, under a contract with a lessee, in the place of others destroyed by fire, during the term of the lease, without his fault or neglect.31

Assignment and Surrender.

32

§ 132. A mechanic's lien on a leasehold is not affected by an assignment of the lease after the lien has attached, nor by a voluntary surrender before expiration of the term,33 since the lessee can only transfer his estate subject to its burdens. In a case in New Jersey it appeared that a tenant had leased a shore front, with the right to build a pier, and had agreed that, if he should abandon the pier, the lease should become void, and that he voluntarily executed an agreement declaring that he abandoned the pier. It was held that, as against a mechanic's lien which had attached to the leasehold before such agreement was executed, the agreement amounted to no more than a voluntary surrender, and did not defeat the lien.34

Lien Affected by Provisions of Lease.

§ 133. A lien on the leasehold estate is subject to all the conditions of the lease.35 Therefore, a forfeiture of the lease for nonpay

31 Schwartz v. Saiter, 40 La. Ann. 264, 4 South. 77.

82 Daniel v. Weaver, 5 Lea (Tenn.) 392. In New York, where the lien does not attach till the claim is filed, an assignee of the leasehold, who buys after the work is completed, but before the claim is filed, takes the leasehold free of the lien. Hankinson v. Riker, 30 N. Y. Supp. 1040, 10 Misc. Rep. 185.

23 Dobschuetz v. Holliday, 82 Ill. 371; Gaskill v. Trainer, 3 Cal. 334; Gaskill v. Moore, 4 Cal. 233; Ellis v. Porter, 29 Pac. 879, 8 Utah, 108. But, after possession has been surrendered to the landlord, his use of the improvements will not be enjoined at the suit of the lien claimant. Chamberlin v. McCarthy, 13 N. Y. Supp. 217, 59 Hun, 158.

24 Hagan v. Gaskill, 6 Atl. 879, 42 N. J. Eq. 215.

25 Gaskill v. Trainer, 3 Cal. 334. A claim for rents, which the lease provides shall be a first lien on the property, is prior to claims of mechanics' liens of persons who erect buildings on the property, under a contract with the lessee, after the execution of the lease, notwithstanding a statute providing that every

36

ment of rent destroys the lien; and, for the same reason, the lien claimant acquires no right to remove the building where the tenant himself had no such right.37 But the lien claimant may avoid a forfeiture by paying rent that is in arrear.38 The lien on the leasehold

40

is also subject to the landlord's claim for advances made in pursu ance of the terms of the lease.39 Where a tenant with privilege of purchasing the fee has given up possession, and his term has expired, but he has not yet lost the right to purchase, a mechanic's lien may attach to that right. And the right secured to a tenant, by the covenants in his lease, to receive payment from his lessors for the buildings, etc., erected by him on the leased premises, at the expiration of the term, is an interest in the land, to which a mechanic's lien may attach, though where a covenant in a lease is merely that the appraised value of the buildings erected by the tenant shall be paid for by the lessor, no mention being made of the lessor's assigns, the lessee, after the expiration of his term, has no interest in the land itself to which, as against such assigns, a mechanic's lien can attach.42

41

Oral Leases, Tenancies at Will, etc.

§ 134. An oral lease, even though not enforceable on account of the statute of frauds, creates a sufficient leasehold estate to sustain a lien, where the statute is not pleaded in defense to a suit to en

building erected on leased land shall be held for debts contracted for or on account of the same. Young v. Hotel Co., 9 Ohio Cir. Ct. R. 127; Id., 2 Ohio Dec. 140.

36 Williams v. Vanderbilt, 30 N. E. 458, 34 N. E. 476, and 145 Ill. 238, affirming Vanderbilt v. Williams, 40 Ill. App. 298. But in the case of Koenig v. Mueller, 39 Mo. 165, it was said that if the lien accrues before the landlord regains possession, the leasehold estate is bound, even though the landlord takes possession before the lien is enforced.

37 Dutro v. Wilson, 4 Ohio St. 101; Oswold v. Buckholz, 13 Iowa, 506. 38 Rothe v. Bellingrath, 71 Ala. 55; Williams v. Vanderbilt, 34 N. E. 476, 145 Ill. 238; Vanderbilt v. Williams, 40 Ill. App. 298.

39 Mills v. Matthews, 7 Md. 315; Lenderking v. Rosenthal, 63 Md. 28.

40 Currier v. Cummings, 3 Atl. 174, 40 N. J. Eq. 145.

41 Watson v. Gardner, 10 N. E. 192, 119 Ill. 312.

42 Watson v. Gardner, 10 N. E. 192, 119 Ill. 312, affirming Gardner v. Watson, 18 Ill. App. 386.

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force the lien.43 A lease of lands for so long a time as oil may be found thereon in paying quantities creates an estate for years, within the meaning of a statute giving to laborers a lien on "leasehold estates" for work and labor done for the lessee; 44 and so does an agreement giving one the right to occupy so much of certain land as is needed to find and produce oil for twenty years, or as long as the land is used for that purpose.45 Whether a tenancy at will is a leasehold interest on which a lien may lie is an unsettled question.46 A tenancy from month to month is a leasehold estate, subject to mechanics' liens; 7 but the tenant of a room in a building has no such estate as will support a lien, since he has no lease of the land, for other tenants may occupy rooms above or below him, and so have an equal right to the land." Where the work is done for the lessee before a formal lease is executed, but while he has possession under an agreement for a lease, a written lease afterwards executed will relate back so as to uphold a lien for the work on the leasehold estate.49 One who puts in machinery for a tenant under an agreement to receive an interest in the lease for his pay, but who does not receive an assignment of such interest, has no leasehold estate against which a mechanic's lien can be enforced for repairs to

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43 Nordyke & Marmon Co. v. Hawkeye Woolen-Mills Co., 5 N. W. 693, 53 Iowa, 521; Montandon v. Deas, 14 Ala. 33. In the case of Dame's Appeal, 62 Pa. St. 417, it was said that it was essential to the creation and validity of the lien that there should be a written lease for a term of years in existence at the time the work was done or the materials furnished, but a contrary view was taken by that same court in the later case of Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403.

44 Harley v. O'Donnell, 9 Pa. Co. Ct. R. 56. 45 McElwaine v. Brown (Pa. Sup.) 11 Atl. 453.

46 In the case of Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403, it was asserted that tenants at will hold a leased estate, which would support a lien, while in the case of Squires v. Fithian's Adm'r, 27 Mo. 134, under a statute which gave a lien in case of leases, it was held that mechanics have no lien for work done on a building where the person with whom the contract was made is only a tenant at will.

47 Deatherage v. Sheidley, 50 Mo. App. 490.

48 McMahon v. Vickery, 4 Mo. App. 225.

Montandon v. Deas, 14 Ala. 33; Mountain City Market House & Hall Ass'n v. Kearns, 103 Pa. St. 403.