Between General and Local Acts.

§ 50. Mechanic's lien laws of limited territorial extent give rise to some interesting points of construction.124 It is the general rule that such laws are to be confined strictly within their territorial limits. Thus, when the lien law covered a certain village, it was held that it did not apply to an outlot adjoining the village, but not included in the recorded plat of the village.125 A general law will not be construed as repealing by implication any existing special law. 126 Thus, a law applicable to New York City alone has been held not to be repealed by implication by a subsequent law applicable to all the cities of the state except Buffalo.127 Where a statute

is local, and by a supplement is extended to other counties, any amendment or supplement to the original statute applies to every county where the statute is in force when the amendment or further supplement is passed.128 And where an act originally confined to four counties is by a later act extended to the entire state, with a new 124 A good illustration of the complications arising from the enactment of local statutes is shown in a New York case. It appeared that in 1858 a law was passed extending the provisions of the mechanic's lien law of 1854 to Rensselaer county. In 1865 a special mechanie's lien law applicable only to Rensselaer county was passed. In 1869 the act of 1854 was amended by extending its provisions to all the counties in the state except Erie, Kings, Queens, New York, and Onondaga, and in 1870 the act of 1869 was so amended as expressly to except Rensselaer county. After a consideration of all these statutes it was decided that the act of 1854 did not apply to Rensselaer county. Van Denburgh v. Village of Greenbush, 66 N. Y. 1. It may be that such complications as this bave caused the present tendency towards general mechanic's lien laws extending throughout the entire state.

125 Tilford v. Wallace, 3 Watts (Pa.) 141. In the case of Flanigan v. Feuring. 22 N. J. Law, 387, a somewhat similar question arose, but it was held there that, although the land in question was not included within the territorial limits of the original act, yet it was included by means of an amendment to such act extending its territorial scope over the entire city.

126 Whipple v. Christian, 80 N. Y. 523, affirming 15 Hun (N. Y.) 321.

127 McKenna v. Edmundstone, 10 Daly (N. Y.) 410, 64 How. Prac. 461, 91 N. Y. 231; McLaughlin v. Page, 14 Daly (N. Y.) 274; Hickey v. Schwab, 64 How. Prac. 8; Keogh v. Main, 50 N. Y. Super. Ct. 183. In the case of Cockerill v. I.conam, 36 Hun (N. Y.) 353, it was held that both the acts were in force in New York City, and that a lien might be enforced there under either; but this view does not seem to be in accord with the other decisions above citea. 128 James v. Keller, 2 Pa. Dist. R. 165.

requirement as to notice, such provision applies as well within such four counties as elsewhere.129

Where a new county is formed out of parts of three counties, in each of which the mechanic's lien law is specifically in force, that law is applicable to the new county without any specific extension of it to that county; 130 but where the new county is formed out of four old counties, in only three of which the lien law is in force, it will not extend to the new county by implication.131 A local law that apparently provides a complete system will repeal by implication, within its territorial limits, a previous general law.132 But, where the local law contains no provision limiting the time for filing claims, a provision on that subject in the previous general law will still be in force in the territory governed by the local law.133 Where the local law expressly repeals all inconsistent acts, provisions of the general law inconsistent with the local law are no longer operative within the latter's territory.134 Where a local law applicable only to a certain city is in force, a general law which is applicable to all the counties of the state except two, in neither of which the city is situated, and which requires notice to be served "upon the town clerk of the town" in which the land is situated, has no application to such city.135 It has been held that an act declaring that the provisions of a prior act shall be in force in a certain county is not void for uncertainty, but has the same effect as though such provisions were set out at length in the extending act.130 Where an agreement to sell materials is made in one state, but they are delivered and used in another state, the right to a lien is governed by the laws of the latter state.187 Land within a state, but belonging to the United States, is subject to the mechanic's lien laws of such state.1 138

129 Best v. Baumgardner, 15 Atl. 691, 122 Pa. St. 17.

130 Parsons v. Winslow, 1 Grant, Cas. (Pa.) 160.

131 Shevlin v. Whelen, 41 Wis. 88. The lien referred to in this case was a lien on logs, but the principle is equally applicable to liens on land.

132 Heckmann v. Pinkney, 8 Daly (N. Y.) 466.

133 Schulenburgh v. Gibson, 15 Mo. 281.

134 Speilman v. Shook, 11 Mo. 340; Heamann v. Porter, 35 Mo. 137. 135 Rafter v. Sullivan, 13 Abb. Prac. (N. Y.) 262.

136 Garland v. Hickey, 43 N. W. 832, 75 Wis. 178.

187 Thurman v. Kyle, 71 Ga. 628.

188 Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604.

§ 51. The time at which the lien attaches varies under different statutes. Sometimes it begins when the contract is entered into, sometimes when the work is begun or when it is finished, sometimes when the claim is filed for record, and sometimes when notice is served on the owner. These are the principal starting points. Occasionally there are others. Thus a Mississippi statute provided that the lien should take effect, as to purchasers and incumbrancers without notice, from the time of recording the contract or beginning suit. And under a statute which declared that no execution should issue against the property charged with the lien unless the defendant owned such property when the suit was begun it was held that the lien attached at the commencement of the suit to enforce it.2

1 Buchanan v. Smith, 43 Miss. 90; Weathersby v. Sinclair, Id. 189. 2 Milam v. Bruffee, 6 Mo. 635.

Execution of Contract.

§ 52. Where the statute declares that the lien shall extend to any estate or interest which the owner has in the lot "at the time of making the contract," the lien attaches from the time the contract under which the labor or materials were furnished was made, and in such case the lien is entitled to priority over a mortgage or other incumbrance executed after the contract was made, though before the work was completed. Under a statute expressly declaring that the lien shall begin "at the time of making the contract," it has been held that where the contracting party has no title to the land at the time the contract is made the lien will attach when he acquires good title thereto.5 Where the statute declares that the lien shall not avail as against mortgages recorded before the date of the contract under which the lien is claimed, the lien relates back to the date of the contract, and by necessary implication has priority over mortgages executed and recorded after the contract was executed, but before work under it was begun. It has been held in Texas that as between owner and contractor the time of making the contract is the time when the lien attaches in determining the right of the owner to a homestead exemption in the land. Where, after a contract for a house has been made, but nothing done under it except to make the doors, a new contract is made with different specifications and provisions, a lien for work done under the latter contract does not relate back to the making of the first one, since the latter contract cannot be regarded as a mere supplement to the first one.

3 Freeman v. Arnold, 39 Ill. App. 216; Clark v. Moore, 64 Ill. 279.

4 Paddock v. Stout, 13 N. E. 182, 121 I. 571; Page v. Bettes, 17 Mo. App. 366. And it has been held that a deed of trust made and delivered before, but not recorded until after, the making of contracts for the building of a house on the premises and materials therefor, does not have priority over the lien of the parties making the contracts, but the lien of the latter takes precedence of the lien created by the deed of trust. Thielman v. Carr, 75 Ill. 385.

5 Bell v. Cooper, 26 Miss. 650, 27 Miss. 57.

• Dunklee v. Crane, 103 Mass. 470; Batchelder v. Rand, 117 Mass. 176; Carew v. Stubbs, 30 N. E. 219, 155 Mass. 549.

7 Swope v. Stantzenberger, 59 Tex. 387.

8 Cocheco Bank v. Berry, 52 Me. 293.

DIVISION II. AT BEGINNING OF WORK.

General Principles.

§ 53. Some cases hold that, since the lien depends upon the existence of a debt, it does not accrue until the work for which it is claimed has been fully performed," while in others the courts lay down the doctrine that the lien commences when the labor or material is furnished, without specifying whether it dates from the beginning or the completion of the act of furnishing; 10 but in a majority of cases the lien dates from the commencement of the work.11

Williams v. Chapman, 17 Ill. 423; McLagan v. Brown, 11 Ill. 519; McCullough v. Caldwell, 8 Ark. 231.

10 Camp v. Mayer, 47 Ga. 414; Lewis v. Graves, 84 Ill. 206; Jones & M. L. Co. v. Murphy, 19 N. W. S98, 64 Iowa, 165; Weaver v. Sells, 10 Kan. 609; Franklin Fire Ins. Co. v. Coates, 14 Md. 285; Treusch v. Shryock, 51 Md. 162; McLaren v. Byrnes, 45 N. W. 143, 80 Mich. 275; Kirkwood v. Hoxie, 54 N. W. 720, 95 Mich. 62; Kuhleman v. Schuler, 35 Mo. 142; Hall v. Manufacturing Co., 22 Mo. App. 33; Keller v. Denmead, 68 Pa. St. 449; Trammell v. Mount, 4 S. W. 377, 68 Tex. 210; Keating Imp. Co. v. Marshall Electric Light & Power Co., 12 S. W. 489, 74 Tex. 605.

11 Welch v. Porter, 63 Ala. 225; Leftwich Lumber Co. v. Florence Mut. Bldg., Loan & Sav. Ass'n (Ala.) 18 South. 48; Tuttle v. Montford, 7 Cal. 358; M'Crea V. Craig, 23 Cal. 522, Davies-Henderson Lumber Co. v. Gottschalk, 22 Pac. 860, 81 Cal. 641; Pacific Mut. Life Ins. Co v. Fisher, 39 Pac. 758, 106 Cal. 224; Mellor v. Valentine, 3 Colo. 255; Keystone Min. Co. v. Gallagher, 5 Colo. 23; Tritch v. Norton, 15 Pac. 680, 10 Colo. 337: St. Louis & P. R. Co. v. Kerr, 38 N. E. 638, 153 Ill. 182; Fleming v. Bumgarner, 29 Ind. 424; Kellenberger v. Boyer, 37 Ind. 188; Monroe v. West, 12 Iowa, 119; Jones v. Swan, 21 Iowa, 181; Neilson v. Railway Co., 44 Iowa, 71; Delaware R. Const. Co. v. Davenport & St. P. Ry. Co., 46 Iowa, 406; Iowa Mortgage Co. v. Shanquest, 29 N. W. 820, 70 Iowa, 124; Flint & W. Manuf'g Co. v. Douglass Sugar Co., 54 Kan. 455, 38 Pac. 566; Trustees Caldwell Inst. v. Young, 2 Duv. (Ky.) 582; Mason v. Heyward, 5 Minn. 74 (Gil. 55); Cogel v. Mickow, 11 Minn. 475 (Gil. 354); Milner v. Norris, 13 Minn. 455 (Gil. 424); Miller v. Stoddard, 56 N. W. 131, 54 Minn. 486; Viti v. Dixon, 12 Mo. 479; McAdow v. Sturtevant, 41 Mo. App. 220; Henry & Coatsworth Co. v. Fisherdick, 55 N. W. 643, 37 Neb. 207; James V. Van Horn, 39 N. J. Law, 363; Meehan v. Williams, 2 Daly (N. Y.) 367; Brown v. Zeiss, 59 How. Prac. (N. Y.) 345; Chadbourn v. Williams, 71 N. C. 444; Burr v. Maultsby, 6 S. E. 108, 99 N. C. 263; Choteau v. Thompson, 2 Ohio St. 125; Hart v. Iron Works, 37 Ohio St. 75; Kendall v. McFarland, 4 Or. 292;