like ordinary debts.142 An administrator cannot, by a contract with a builder, bind the estate of his intestate to pay for work done or materials furnished in erecting a house upon the land of such intestate. But the house built under such a contract may be subjected to a mechanics' lien, and sold to satisfy the same.143 Thus, where one, after erecting buildings on the land of another, dies, and his administratrix purchases the land, and takes a deed thereof in her own name, using estate funds for that purpose, and rebuilds the building after its destruction by fire, using insurance money belonging to the estate, a person who, without notice of the rights of the estate, supplies labor and materials for the building, and files a mechanic's lien therefor, acquires a lien on the building and land prior to the rights of the heir.144 And where a contractor had furnished materials, and had almost completed a house, when the owner died, and, under an agreement with the administrator, the contractor completed the work within a few days, it was held that the owner's death did not affect the lien.145

147

§ 343. An administrator who has collected rent accruing after the death of his intestate cannot apply it to payment of mechanics' liens on the land, since the rents belong to the heirs, and the liens are charges on the land itself, rather than on the rents and profits.146 It was once held in Maine that the holder of a mechanic's lien was not entitled to any preference over general creditors where the owner had died, and his estate had been declared insolvent; but this rule was afterwards changed by express legislation so as to preserve the lien.148 It is held in California, under a statute providing, in case of death of an employer, for payment of his employé, by his successor, for such services as are necessary to protect the property for a reasonable time, that six months' continuation of services after the appointment of an administrator of the employer's estate,

142 Richardson v. Hickman, 32 Ark. 406. A different rule prevails in regard to logging liens. Casey v. Ault, 29 Pac. 1048, 4 Wash. 167. See post, c. 19. 143 Weathersby v. Sinclair, 43 Miss. 189.

144 Seibel v. Bath (Wyo.) 40 Pac. 756. 145 Boynton v. Westbrook, 74 Ga. 68. 146 Kimball v. Sumner, 62 Me. 305.

147 Severance v. Hammatt, 28 Me. 511. 148 Pratt v. Seavey, 41 Me. 370.

in the absence of special circumstances, is more than a reasonable time; and in such case a claim of mechanic's lien for work done during the five months succeeding the appointment of the administrator, filed six months after such appointment, is not a compliance with the statute requiring such claims to be filed within 60 days from the termination of the employment.149

DIVISION V. ASSIGNEES AND RECEIVERS.

Assignee of Owner.

§ 344. A mechanic's lien cannot be defeated by an assignment for the benefit of creditors, made by the owner of the land after the lien has attached.150 The assignee is not even entitled to the rights of a purchaser, but is considered a mere volunteer.15 He takes title subject to the lien,152 which may be enforced against him without having the debt it secures presented to him for allowance.153 The assignment does not, however, extend the time for suing on the lien. 154

Assignee in Bankruptcy.

§ 345. The effect of an assignment by the owner of the land to an assignee in bankruptcy, together with an adjudication of bankruptcy and a discharge of the bankrupt, is somewhat different from that of an ordinary assignment for the benefit of creditors. It has been held that bankruptev intervening between the attaching of the lien and the filing of the claim therefor does not affect the right to file such claim; 155 that an adjudication in bankruptcy pending a suit to foreclose a lien and a subsequent discharge of the bankrupt owner puts an end to the liens of mechanics, their debts being prov able in bankruptcy; 156 and that where the assignee in bankruptcy

149 Weithoff v. Murray, 18 Pac. 435, 76 Cal. 508. 150 Hart v. Iron Works, 37 Ohio St. 75.

151 Crump v. Gill, 9 Phila. (Pa.) 117; Clark v. Miller, 14 Pa. Co. Ct. R. 227. 152 Steger v. Refrigerating Co., 14 S. W. 1087, 89 Tenn. 453.

153 Barnes v. Fisher, 9 Mo. App. 574.

154 Bradford v. Dorsey, 63 Cal. 122.

155 In re Coulter, Fed. Cas. No. 3,276, 5 N. B. R. 64.

156 Cosgrove v. Mitchell, 74 Ga. 824. In a preceding case in the same court, It

takes possession of the property, and, by order of the bankruptcy court, sells it, free from all liens, an existing mechanic's lien is thereby foreclosed, and the lienor should be paid out of the proceeds of the sale.157 Where the owner becomes bankrupt before suit is begun to foreclose the lien, such suit may, nevertheless, be begun in a state court, but should not be begun without leave of the bankruptcy court,158 and there should be no final decree therein until de termination of the bankruptcy proceedings.159

Assignee of Contractor.

§ 346. The right of assignees of contractors to enforce liens has been discussed in a previous chapter.160 The other rights of such assignees still remain to be stated. As between assignees and subcontractors, the prior in time is generally held to have the first claim on the fund due the contractor. In other words, the assignee of the contractor is to be paid in preference to a subcontractor or material man in the second degree whose lien did not attach until after the assignment was made.161 It is essential in such cases that

was held that where a mechanic's lien was duly recorded, and suit brought thereon by attachment, the defendant's bankruptcy pending the suit dissolved the attachment, but did not destroy the lien, which should be paid off by the assignee. Loudon v. Blandford, 56 Ga. 150.

157 Moran v. Schnugg, Fed. Cas. No. 9,786, 7 Ben. 399.

158 In re Cook, Fed. Cas. No. 3,151, 3 Biss. 116.

159 Bryant v. Small, 35 Wis. 205; Clifton v. Foster, 103 Mass. 233.

160 See ante, §§ 259-260.

161 St. Louis Nat. Stock Yards v. O'Reilly, 85 Ill. 546; Ryerson v. Smith, 38 N. E. 1032, 152 Ill. 641; Id., 51 Ill. App. 270; Kulp v. Chamberlain, 31 N. E. 376, 4 Ind. App. 560; Cutler v. McCormick, 48 Iowa, 406; Burnett v. Mayor, etc., of Jersey City, 31 N. J. Eq. 341; Board of Education of School Dist. No. 85 v. Duparquet, 24 Atl. 922, 50 N. J. Eq. 234; Lauer v. Dunn, 22 N. E. 270, 115 N. Y. 405; Id., 5 N. Y. Supp. 161, 52 Hun, 191; Stevens v. Ogden, 29 N. E. 229, 130 N. Y. 182, reversing Stevens v. Reynolds, 7 N. Y. Supp. 771, 54 Hun, 419; Hondorf v. Atwater, 27 N. Y. Supp. 447, 75 Hun, 369; Fredericks v. Homestead Ass'n (Sup.) 29 N. Y. Supp. 1041; Murray v. Micolino, 31 N. Y. Supp. 1109, 83 Hun, 564; Newman v. Levy, 32 N. Y. Supp. 557, 84 Hun, 478; Oates v. Haley, 1 Daly (N. Y.) 338; Young Stone-Dressing Co. v. Wardens, etc., of St. James Church, 61 Barb. (N. Y.) 489; Copeland v. Manton, 22 Ohio St. 398; Clark v. Gillespie, 8 S. W. 121, 70 Tex. 513; Campbell v. Hildebrandt (Tex. Sup.) 3 S. W. 243; Hall v. Banks, 48 N. W. 385, 79 Wis. 229; First Nat. Bank of Bridgeport

162

the assignment should be supported by a valuable consideration,1 and there are decisions that hold that a pre-existing debt does not constitute such consideration,163 from which it naturally follows that the right of a subcontractor to a lien on money due the contractor is not cut off by an assignment by the contractor for the benefit of creditors.164 In other courts, however, it is held that, where a contractor makes a general assignment for the benefit of his creditors before subcontractors' liens have attached, the assignee has a right to the amount due the contractor superior to that of the subcontractors,165 and that a pre-existing debt is a good consideration for an assignment of a contractor's account." The rights of an assignee are not affected by the fact that the owner knew that subv. Perris Irrigation Dist., 40 Pac. 45, 107 Cal. 55; Forhan v. Lalonde, 27 Grant (U. C.) 600.

166

There are some decisions to the contrary. Thus, in Michigan, under a statute declaring that the filing of a mechanic's lien shall not bind the premises for a greater sum than is due from the owner at the time that it is filed, or that may become due thereafter, it is held that an assignment by a contractor of all the moneys to become due under his contract will not defeat a subcontractor's lien filed before the owner has actually paid the money to the assignee. Bourget v. Donaldson, 47 N. W. 326, 83 Mich. 478. And, in Ohio, a subcontractor who has properly filed his lien has a superior claim on the money due on the contract to one who, with the knowledge of the owner, had received an order therefor from the contractor, which, however, the owner had not accepted or promised to pay. Tollheis v. James, 7 Ohio Cir. Ct. R. 386, 25 Wkly. Law Bul. 277. 162 Oates v. Haley, 1 Daly (N. Y.) 338.

163 English v. Lee, 18 N. Y. Supp. 576, 63 Hun, 572. An order for a general debt of the contractor, accepted by the owner, is not entitled to priority of payment, where the balance due the contractor is insufficient to satisfy all the subsequent lien claimants. McPherson v. Walton, 11 Atl. 21, 42 N. J. Eq. 282.

164 Smith v. Baily, 8 Daly (N. Y.) 128; Mandeville v. Reed, 13 Abb. Prac. (N. Y.) 173; McMurray v. Hutcheson, 59 How. Prac. (N. Y.) 210. Where a subcontractor is prevented from performing his contract with the contractor, by reason of the latter becoming insolvent and assigning the contract for the benefit of his creditors, he may enforce a lien for the value of his labor and materials performed and furnished up to the time when he was prevented. Henderson v. Sturgis, 1 Daly (N. Y.) 336.

165 Kulp v. Chamberlain, 31 N. E. 376, 4 Ind. App. 560; Ryerson v. Smith, 51 Ill. App. 270; Craig v. Smith, 37 N. J. Law. 549.

166 Copeland v. Manton, 22 Ohio St. 398; McCorkle v. Herrman, 22 N. E. 948, 117 N. Y. 305.

168

contractors held unpaid claims, on which they might perfect liens.167 In some cases, where priority is given to the contractor's assignee in preference to the subcontractor, stress is laid on the fact that the owner had notice of the assignment before the subcontractor's lien attached; but it has been held that this makes no difference, and that an assignment, by one who has contracted to erect a building, of the money due and to grow due to him thereon, will prevail over a notice of lien served upon the owner by a laborer or material man after the assignment, but before notice thereof to the owner.109 An order by the contractor on the owner constitutes an assignment of so much of the money coming to him,170 even though the order is not accepted by the owner.171

172

§ 347. The assignee of a contractor may, it is said, contest the liens of subcontractors on every ground available to the owner.1 One who has been made defendant to a suit by an administrator to enforce a mechanic's lien, and who claims the fund by reason of an assignment of the contract under which the lien was acquired, alleged to have been made by the deceased to secure money advanced by the claimant to enable him to complete the work, cannot complain of a judgment distributing the fund among other lienors, where the evidence fails to establish an assignment of the contract, and the debt due him has not been authenticated and presented to the administrator for allowance.173 In an action to foreclose a mechanic's lien, the other lienors and the assignee of the contractor were made parties defendant with the owner, who had broken his building contract by refusing to pay the second installment therein at the stage of the work agreed upon. It was held that the judgment of the court properly directed a sale of the building for the liens, and that

167 Hall v. Banks, 48 N. W. 385, 79 Wis. 229.

168 Copeland v. Manton, 22 Ohio St. 398; Clark v. Gillespie, 8 S. W. 121, 70 Tex. 513.

169 Board of Education of School-Dist. No. 85 v. Duparquet, 24 Atl. 922, 50 N. J. Eq. 234.

170 Stevens v. Ogden, 29 N. E. 229. 130 N. Y. 182; St. Louis Nat. Stock Yards v. O'Reilly, 85 Ill. 546.

171 Lauer v. Dunn, 22 N. E. 270, 115 N. Y. 405; Superintendent, etc., of Public Schools v. Heath, 15 N. J. Eq. 22.

172 Smith v. Baily, 8 Daly (N. Y.) 128.

173 Red River County Bank v. Higgins, 9 S. W. 745, 72 Tex. 66.