A Treatise on Mechanics' Liens

have been filed,697 but an auditor appointed after judgment to distribute the proceeds of the sale has no power to define the curtilage.699

Dismissal of Suit.

§ 601. Where a material man, in an action to enforce a lien against the contractor and owner of a building, dismisses the suit as to the former, who is the real debtor, it should be dismissed as to the owner also, as there would be no one to contest the validity of the plaintiff's demand."99 But in an Indiana case, where after the jury had been sworn, and the evidence offered, the plaintiff filed a dismissal of the cause as against two of the defendants, so far as it was sought to obtain a personal judgment against them, but retained them as defendants so far as it was sought to enforce the lien on the premises, it was held that the action of the court in permitting this was not erroneous.700 Where one entitled to a mechanic's lien assigned the avails thereof, pending proceedings for its enforcement, to one who was a cross petitioner in the suit, it was held that the suit should not be dismissed upon the written stipulation of the nominal plaintiff.701 Under a statute providing that "any number of lienholders may join in one suit, and all suits brought by a lienholder shall be taken to be brought on behalf of all the lienholders of the same class; and in the event of the death of the plaintiff therein, or his refusal or neglect to proceed therewith, may, by leave of the court, be prosecuted and continued by any other lienholder of the same class,"-it has been held that a suit to foreclose a lien, which has been dismissed by consent of the parties, may be revived by a registered lienholder of the same class who was not a party to the suit. The dismissal will be set aside, and he be allowed to prosecute the suit as a plaintiff.702 It has been held in New York that a suit to foreclose a mechanic's lien abates on the death

697 Menner v. Nichols (Pa. Sup.) 8 Atl. 647.

698 In re Mowrey's Estate, 1 Pa. Dist. R. 326.

699 Ashburn v. Ayres, 28 Mo. 75; Wibbing v. Powers, 25 Mo. 599.

700 Scoville v. Chapman, 17 Ind. 470.

701 Major v. Collins, 11 Ill. App. 658.

702 McPherson v. Gedge, 4 Ont. 246.

of the owner defendant, and cannot be revived against his devisees or executors."

708

Discharge of Lien by Deposit or Bond.

§ 602. Under the statutes of some states the owner may obtain a discharge of the lien by giving bond for the payment of the lien debt, or by depositing the amount of such debt. The effect of the filing of such a bond will be discussed in another chapter, 70+ but some questions of practice in regard to deposit of the amount claimed may appropriately be considered here. Under a statute which authorizes an offer to pay money into court, in an action under the mechanic's lien law, "in discharge of the lien," the failure of an offer so made to state that it was "in discharge of the lien" renders the offer insufficient.705 The deposit provided for by the statute may be made or not, the right to make it and thus to discharge the lien being a privilege given to the owner.706

§ 603. The deposit simply takes the place of the land, and the lien claimant must establish his lien before he can demand money deposited with the county clerk to remove liens upon the property.707 When a judgment on plaintiff's default, in an action to foreclose a mechanic's lien, is vacated, the action is thereby reinstated; and the money on deposit with the county clerk to discharge the lien, and withdrawn by defendant after judgment, should be redeposited.708 Under a statute providing that, at the commencement of an action to foreclose, the lien may be discharged by the deposit of "such sum of money as in the judgment of the court will be sufficient to pay any judgment which may be recovered against the property," the only question for the court, on an application to cancel a lien, is the amount of the deposit to be made, and the validity of a claim cannot then be

703 Leavy v. Gardner, 63 N. Y. 624.

704 See post, § 757.

705 Burton v. Rockwell, 17 N. Y. Supp. 665, 63 Hun, 163; Hall v. Dennerlein (Com. Pl.) 14 N. Y. Supp. 796.

706 Whittier v. Blakely, 11 Pac. 305, 13 Or. 546.

707 People v. Butler, 61 How. Prac. (N. Y.) 274; Dunning v. Clark, 2 E. D. Smith (N. Y.) 535; Schillinger Fireproof Cement & Asphalt Co. v. Arnott, 33 N. Y. Supp. 343, 86 Hun, 82; In re Dean, 31 N. Y. Supp. 959, 83 Hun, 413. 708 Cunningham v. Hatch (Com. Pl.) 18 N. Y. Supp. 458.

inquired into; and therefore an order directing the cancellation of a lien without requiring a deposit to secure it, is void, though the claimant was made a defendant to the action, and failed to appear, 709 In an action, in New York, brought to foreclose under the lien law, where the amount of the owner's indebtedness was in dispute, the court denied an application of the owner for an order, directing that, upon the, payment into court of the money admitted by him to be owing to the contractor, other claimants should be substituted in his place as parties to the suit, and that he should be discharged from liability.710 After a subcontractor's lien has been discharged pending suit to foreclose, by the deposit of the amount due with the county clerk, it is proper to dismiss the suit as to the owner, leaving it to be contested by the contractor, because the owner has no further interest in the suit.711 Where mechanics' liens

exist on land condemned for public use, a court of equity has power to allow the party condemning the same to pay into court, for the benefit of the lienholders, the damages awarded the owner, though the act under which the condemnation proceedings are brought does not provide for such payment, and the lienholders are not parties thereto.712

Compelling Suit.

§ 604. Some mechanic's lien acts provide a method by which the owner may compel a lien claimant to sue on his claim within a limited time, or else lose his lien. But, in the absence of any statutory authority therefor, the contractor cannot compel the subcontractor who has filed a claim to commence suit to foreclose." 713 Under the New York mechanic's lien law, which provides that an owner of property against which claims are filed may commence proceedings to have them foreclosed, an owner may give the notice provided by the statute; and, if a lienor served with such notice fails to file a state

709 Fischer v. Hussey, 32 N. Y. Supp. 762, 11 Misc. Rep. 529. 710 Chamberlain v. O'Connor, 1 E. D. Smith (N. Y.) 665.

711 Schaettler v. Gardiner, 4 Daly (N. Y.) 56, 41 How. Prac. (N. Y.) 243. 712 Philadelphia & R. R. Co. v. Pennsylvania S. V. R. Co., 25 Atl. 177, 151 Pa. St. 569, and 31 Wkly. Notes Cas. 187.

713 Butler v. Magie, 2 E. D. Smith (N. Y.) 654; Carpenter v. Jaques, Id. 571.

714

ment of his claim within the time limited, the court may, upon the owner's application, terminate the lien. When a lien claimant has been, by rule of court, directed to proceed with his claim, it is a matter of discretion with the court to allow him to have his claim stricken off." 715

714 Carroll v. Caughlin, 7 Abb. Prac. N. S. (N. Y.) 72.

715 Seabrook v. Swarthmore College, 65 Pa. St. 74.

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