A Treatise on Mechanics' Liens

Right to File a Second Claim.

§ 504. The effect of filing a claim upon the claimant's right to file again depends upon the validity of the claim filed. If the claim. filed is valid and complete, filing it exhausts the claimant's right, and he cannot file a second lien for the same account.329 To warrant the rejection of a second mechanic's lien filed by the same person, it must affirmatively appear that the first lien was against the same property, and that it was valid, and the burden of proof of showing those facts is upon the person contesting the lien.330 But, if the first claim filed is for any reason invalid, or even defective, it does not have the effect of preventing the claimant from filing a second claim for the same account, if such second claim is filed within due time.3 331

DIVISION VI. DUTIES OF RECORDING OFFICER.

Recording, Abstracting, and Indexing.

505. When a lien claim is duly filed with the proper officer, it is his duty either to record it in his official records, or to make an abstract of the claim, and index it, and then keep the original claim on file in his office. Some statutes provide for the one method and some for the other. After the claimant has parted with his claim,

329 Cox v. Railroad Co., 44 Cal. 18; Gilerist v. Gottschalk, 39 Iowa, 311; Mulloy v. Lawrence, 31 Mo. 583; Hormann v. Wirtel, 59 Mo. App. 646; Wheeler v. Almond, 46 N. J. Law, 161; Battle v. McArthur, 49 Fed. 715.

It has, however, been held in one New York case that a subcontractor who has released his lien on the contractor's promise to pay certain notes, which promise is not kept, may thereafter file a new lien. Haden v. Buddensiek, 6 Daly (N. Y.) 3.

330 Hormann v. Wirtel, 59 Mo. App. 646.

331 Gray v. Dunham, 50 Iowa, 170; Davis v. Schuler, 38 Mo. 24; South Missouri Lumber Co. v. Wright, 21 S. W. 811, 114 Mo. 326; Mechanics' Planing-Mill Co. v. Nast, 7 Mo. App. 147; Skyrme v. Occidental Mill & Mining Co., 8 Nev. 234; Chambers v. Yarnall, 15 Pa. St. 265; Bournonville v. Goodall, 10 Pa. St. 133; Highfield v. Pierce, 3 Phila. (Pa.) 507; Clark v. Miller, 14 Pa. Co. Ct. R. 227; Mechanics' Mill & Lumber Co. v. Denny Hotel Co., 32 Pac. 1073, 6 Wash. 122.

his control over it, of course, entirely ceases, so the courts have usual- ' ly been loth to allow a lien to be defeated by any act or omission of the recording officer unless some third person was misled thereby, to his prejudice. Accordingly it has been held that failure to record a claim that has been duly filed for record does not vitiate it,332 especially where the original claim remains on file in the office of the recorder. 333 Nor is such claim invalidated by being recorded in the wrong book,334 nor by the neglect of the clerk to make an abstract of it,335 nor his failure, in case of a railroad lien, to send a copy of it to the secretary of state,336 nor his failure to indorse on the claim the time of issuing summons to foreclose the lien,3 nor bis failure to index it, where no third parties are interested.338 Under a statute requiring a lien claimant to file his claim for a lien, and the clerk to docket it, and providing that any person having so filed his claim shall have a lien on the premises, the clerk's failure to docket the claim when left with him does not affect the validity of the lien.3 It has, however, been held in one case that under a statute which provides that "no lien shall attach for materials furnished, unless the person furnishing the same" shall give notice, as required, and "place a copy of said notice on record in a book to be kept for that purpose," the mere filing of the copy is not enough;

339

337

332 Spencer v. Doherty, 20 Atl. 232, 17 R. I. 89; Smith v. Headley, 23 N. W. 550, 33 Minn. 384; Wilson v. Hopkins, 51 Ind. 231, overruling Falkner v. Colshear, 39 Ind. 201.

333 Smith v. Headley, 23 N. W. 550, 33 Minn. 384.

334 Wilson v. Logue, 30 N. E. 1079, 131 Ind. 191; Adams v. Shaffer, 31 N. E. 1108, 132 Ind. 331; Leeper v. Myers, 37 N. E. 1070, 10 Ind. App. 314.

335 Cornelius v. Grant, 8 Mo. 59; Freeman v. Arment, 5 N. Y. Leg. Obs. 381. 336 St. Louis Bridge & Construction Co. v. Memphis, C. & N. W. R. Co., 72 Mo. 664.

337 Hall v. Spaulding, 40 N. J. Law, 166. The issue in this case was between different claimants of mechanics' liens. It is also held that when such indorsement is not made till the trial, but within the time limited for issuing summons, there is no error, as to parties not actually misled. Jannes v. Van Horn, 39 N. J. Law, 353.

338 Irish v. Harvey, 44 Pa. St. 76. But it is held that, against subsequent purchasers and incumbrancers without actual notice, failure to index the claim destroys its validity, since such parties are not obliged to search the records for unindexed claims. Appeal of Cessna (Pa. Sup.) 10 Atl. 1.

339 Goodman v. Baerlocher, 60 N. W. 415, 88 Wis. 287.

nor is the mere recording of the names of the parties to the notice, with a minute of the time when the copy was filed, a sufficient recording, 340

In What Book to be Recorded.

§ 506. Where the statute does not specify in what book lien claims shall be recorded, a record of them in any record book kept in the office of the recorder is sufficient.341 And where the statute requires lien claims to be recorded in a book kept for that purpose, and also requires mortgages to be recorded in books separate from those in which deeds are recorded, it is proper to record lien claims and mortgages in the same book.342

340 Dodge v. Walsham, 19 Atl. 326, 16 R. I. 704. But, in an almost contemporaneous decision by the same court, it was held that a statute which provides that on the commencement of proceedings to enforce a mechanic's lien by the lodging of the account in the town clerk's office, with notice to what building or land the demand refers, the clerk shall record the notice, and the exact time of the filing of the account, in a book kept for that purpose, is merely directory to the clerk, and his failure to comply with the statute will not invalidate the lien. Spencer v. Doherty, 20 Atl. 232, 17 R. I. 89.

341 Glading v. Frick, 88 Pa. St. 460. The claim in question in this suit was recorded in a deed book, and this was held sufficient.

342 Quinn v. Logan, 4 S. W. 247, 67 Tex. 600; Lyon v. Logan, 5 S. W. 72, 68 Tex. 521; Bosley v. Pease (Tex. Civ. App.) 22 S. W. 516. In one case it was even held that under such statute the record of a lien claim in the general deed record books is sufficient where it appears that such books were also kept and used to record mechanics' liens, and that no book was kept in the county clerk's office for such purpose alone. Lignoski v. Crooker (Tex. Civ. App.) 22 S. W. 774.

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