of the junior lien had notice.252 Under the New Hampshire statutes, which provide that the builder's lien shall continue for 90 days after the services are performed or materials furnished, "and shall take precedence of all prior claims except liens on account of taxes," and that any such lien may be secured by attachment, "and such attachment shall have precedence of all other attachments made after such lien accrued, unless founded on a prior lien," it is held that builders' liens have precedence in the order of their accrual, and, if they accrue simultaneously, in the order of the attachments made to secure them.2

253

Subrogation.

256

$263. No person is entitled to be subrogated to the rights of creditors whose liens he has voluntarily discharged, unless his act was necessary to protect his own interest in the property.254 Thus, one who voluntarily pays a lien debt merely to accommodate the debtor is not subrogated to the rights of the lienor.255 And a surety or guarantor has no right to a mechanic's lien on the house of his principal for materials furnished to the latter by parties to whom he gave the guaranty.2 But the owner of land who has paid the account of a workman of the contractor after the workman has established a lien therefor has a right of action against the contractor for the amount of such payment, upon the theory of the contractor's implied promise to pay; 257 and if a material man in the second degree obtains judgment against the owner, and against the property, the owner may deduct the amount of the judgment from any sum due the contractor, on the contract price.258 In a case in Maryland it appeared that the owner of two distinct pieces of land mortgaged both of them to secure one debt. Afterwards he gave a second mortgage on one piece, and created mechanics' liens against the other. On foreclosure of the first mortgage the entire debt secured thereby was

252 Winn v. Henderson, 63 Ga. 365.

253 Kendall v. Pickard (N. H.) 32 Atl. 763.

254 Bayard v. McGraw, 1 Ill. App. 134.

255 In re North River Const. Co., 38 N. J. Eq. 433.

256 Ruggles v. Blank, 15 Ill. App. 436.

257 Nichols v. Bucknam, 117 Mass. 488.

258 Whittier v. Wilbur, 48 Cal. 175.

paid out of the sale of the latter piece of land. On this state of facts, it was held that the mechanics had no right to be subrogated to the rights of the first mortgagee on the first tract of land, the second mortgage having been filed for record before their liens accrued. 259 259 Leib v. Stribling, 51 Md. 286.

MECH. LIENS- -17

(257)

DIVISION II. MARRIED WOMEN.

269. Under Common-Law Disabilities.

270-272. Under Enabling Statutes.

273. Under Mechanic's Lien Acts Expressly Including Married Women.

274-276. Contract Made with Husband.

277-279. Husband as Wife's Agent.

DIVISION V. LESSOR AND LESSEE.

§ 289-291. Lien on Reversion for Improvements by Tenant.

295. Trade Fixtures and Tenant's Property.

296. Effect of Surrender or Forfeiture.

297. Distinction between Repairs and Improvements.
298. Quasi Leases.

299. Tenants for Life.

DIVISION VI. VENDOR AND VENDEE.

300. Vendee in Possession.

301. Vendee as Owner.

302. Vendee as Vendor's Agent.

303. Improvements with Vendor's Consent.

304. Vendor's Consent-How Shown.

305-306. Stipulations in Contract of Sale.

§ 264. Mechanic's lien statutes usually give a lien on land for work done and materials furnished for the "owner." It therefore becomes important, in considering the rights of those against whom mechanics' liens are claimed, to determine who is an "owner" within the meaning of these statutes. The question is important, since it is indispensable, in every case, that the party with whom the contract is made should have some interest in the land. And a person commencing to furnish material for, or commencing to labor on, an improvement on land must take notice of the interest in the premises of the person with whom he contracts, as shown by the public records, since his lien for labor and material, aside from the improvement itself, attaches only to such interest.2 It is not essential to the lien that the person against whom the lien is claimed should be the absolute owner of the entire estate in the land. But a person holding an estate less than the fee is the "owner" only to the extent of his interest, and cannot, by his contract for work to be done or materials to be furnished, create a lien against the property thereby improved, to any greater extent than his right therein. If, how ever, the one who assumes to act as owner has in reality no title to the land, there is, of course, no lien. For this reason a house rebuilt

1 Tracy v. Rogers, 69 Ill. 664.

2 Henry & Coatsworth Co. v. Fisherdick, 55 N. W. 643, 37 Neb. 207; Hoagland v. Lowe, 58 N. W. 197, 39 Neb. 397; Waterman v. Stout, 56 N. W. 987, 38 Neb. 396; Mellor v. Valentine, 3 Colo. 259.

3 Van Billiard v. Nace, 1 Grant, Cas. (Pa.) 233; Benjamin v. Wilson, 26 N. W. 725, 34 Minn. 517.

4 McCarty v. Carter, 49 Ill. 53. There are some exceptions to this rule, as in case of landlord and tenant, and vendor and purchaser, which will be considered hereafter. See post, §§ 289–311.

Powers v. Armstrong, 19 Ga. 427; Smith v. Association, 14 N. W. 221, 60

by an insurance company in discharge of its liability upon a policy of fire insurance is not subject to mechanics' liens for work and materials furnished in rebuilding it, since the company is not the owner either of the land or the building." Where the contracting owner conveys the land after the building has been begun, and continues to direct its construction, and the building is reconveyed to him before suit to foreclose the lien is begun, he will not be heard to object that the building was not erected by the owner of the land, since the lien attached while he owned it." A woman who has an alienable life estate charged with the support of her children is an owner within the meaning of the mechanic's lien statutes, and devisees of land are owners even while the estate is in process of administration. But one who is merely donee of the rent for life is not an owner; 10 neither is a corporation the owner of land which it has taken, but for which it has not paid compensation.11 It has been held by an intermediate court in Missouri that the owner of the building, whether he has any interest in the land or not, is an "owner or proprietor," whose contract may be the basis of a lien,12 and by a similar court in New York that the word "owner," as used in the mechanic's lien law, is the correlative of contractor, and means the person who employs the contractor, and for whom the work is done under the contract.13 Whether a vendee in possession of land to which he has not yet received a deed is an "owner" of the land is an unsettled question.14 Iowa, 164; Wilkins v. Litchfield, 29 N. W. 447, 69 Iowa, 465; Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578. See ante, § 18.

But this objection cannot be made by the wrongdoer himself. A person who wrongfully makes improvements upon the land of another cannot defeat a mechanic's lien upon the improvements by showing that he had no right to enter upon the land, and was a trespasser, nor can his assignee do so. Lane v. Snow, 24 N. W. 35, 66 Iowa, 544.

6 Bruner v. Sheik, 9 Watts & S. (Pa.) 119.

7 Gordon v. Torrey, 15 N. J. Eq. 112.

8 Lang v. Everling, 23 N. Y. Supp. 329, 3 Misc. Rep. 530.

O'Brien v. Hanson, 9 Mo. App. 545.

10 Osgood v. Pacey, 23 Ill. App. 116.

11 Powers v. Armstrong, 19 Ga. 427.

12 Seaman v. Paddock, 51 Mo. App. 465.

18 McDermott v. Palmer, 11 Barb. (N. Y.) 9.

14 See post, § 301.