ARTICLE 8.

PRIORITY OF IMPROVEMENT LIENS AMONG THEMSELVES.

599. Rank of liens.

599. Rank of Liens.

Improvement liens have priority in the following order:

(1) liens of persons performing manual labor, (2) of materialmen,

(3) of subcontractors,

(4) of original contractors.

The court must, in its judgment, declare the rank of each lien, and the proceeds of the sale of the property subject to the liens must be applied to the satisfaction of each class of liens in the order of its rank.1

1 Code of Civil Procedure, section 1194, first portion: "In every case in which different liens are asserted against any property, the court in the judgment must declare the rank of each lien, or class of liens,

73-4n which shall be in the following order, viz.: 85m} [a] 1. All persons performing manual labor in, on or about the same; 2. Persons furnishing materials; 3. Subcontractors; 4. m85 Original contractors n73-4. And the proceeds of the sale of the Liens-62

property must be applied to each lien or class of liens in the order of its rank." As enacted 1872; amended, in effect May 29, 1874, and May 17, 1885.

(a) Former reading: "First. All persons other than the original contractors and subcontractors; Second. The subcontractors; Third. The."

Historical.-Under the earlier statutes, Stats. 1850. c. 87, sec. 9, Stats. 1855, 1856, and 1862, c. 297, sec. 3, all lien-claimants were divided into two classes, original contractors and subcontractors constituting one, and laborers and materialmen the other, the latter class having priority, and in case of a deficiency of proceeds being entitled to a pro rata distribution: See (Stats. 1850) Moxley v. Shepard, 3 Cal. 64, and (Stats. 1856) Crowell v. Gilmore, 18 Cal. 370. Be Stats. 1867-68, c. 448; sec. 10, second subdivision, the order of priority was: 1. Laborers and materialmen; 2. Subcontractors; 3. Original contractors. The code as enacted 1872 made a division into: 1. Persons contracting directly with the contracting owner; and 2. All other persons, the latter (called 'subcontractors' by the statute), being given priority. On May 29, 1874, a return was made to the provisions of the statute of 1868.

ARTICLE 9.

IMPROVEMENT LIEN A CUMULATIVE SECURITY.

600. Improvement lien a cumulative security.

600. Improvement Lien a Cumulative Security. An improvement lien is an additional and cumulative security, which may be availed of by those authorized to obtain it without impairing or affecting any right of action otherwise available; nor is an improvement lien waived by recourse to other remedies.1

1 Code of Civil Procedure, section 1197: "Nothing contained in this chapter 73-4f shall f73-4 be construed to impair or affect the right of any person of whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor [073-40]. As enacted 1872; amended, in effect July 1..

The code as enacted 1872, and Stats. 1867-68, c. 448, sec. 13, contained a further provision that where the holder of a mechanic's lien resorted to remedies in personam, he might take out an attachment, notwithstanding his claim was secured by a valid lien.

Stats. 1867-68, also added a proviso that there could be but one satisfaction of the secured obligation.

See, also, Stats. 1850, c. 87, sec. 13; Stats. 1855, c. 130, sec. 9; Stats. 1856, c. 134, sec. 8; Stats. 1862, c. 297, sec. 14, amended 1863-64, c. 262, sec. 2.

There is, however, no personal liability on the part of the contracting owner to persons contracting with the original contractor where the original contract is void and the original contractor is deemed the contracting owner's agent. See section 549, above.

The right to a money judgment against the person who employs the mechanic or purchases the materials is not lost or waived by a proceeding to enforce the lien, or recover from the owner the balance of the contract price remaining in his hands," under Code of Civil Procedure, section 1184: Bates v. County of Santa Barbara, 90 Cal. 543, 547, 548, 27 Pac. 438.

Nor is the lien waived by commencing and prosecuting a personal action upon the secured claim to judgment, so long as the judgment remains unsatisfied: (Stats. 1856) Brennan v. Swasey, 16 Cal. 140, 76 Am. Dec. 507; Germania Bldg. etc. Assn. v. Wagner, 61 Cal. 349, 355.

No judgment against the parties personally liable is necessary to support the lien: Russ Lumber etc. Co. v. Garrettson, 87 Cal. 589, 596, 25 Pac. 747; Yancy v. Morton, 94 Cal. 558, 560, 29 Pac. 1111.

601.

ARTICLE 10.

ENFORCEMENT OF IMPROVEMENT LIEN.

Method of enforcement.

602. Time of commencing action.

603. Foreclosure actions against the same property may be united.

604. Costs and counsel fees are necessary incidents of foreclosure judgment.

601. Method of Enforcement.1

An improvement lien may, when performance of the obligation secured thereby becomes due," be enforced by a foreclosure action.

602. Time of Commencing Action.3

Every action to foreclose an improvement lien

1 See Code of Civil Procedure, section 1190, as quoted section 602, below.

2 Secured Obligation Must be Due.-A foreclosure complaint averring that the plaintiffs, who were materialmen, were to be paid "upon the completion of the building," and that at the time of the commencement of the action the building was not completed, does not state a cause of action, as "there can be no foreclosure of a lien until the debt for which the lien is made and held as security has become payable." If the agreement had been varied or terminated by any of the modes made known to the law, it should have been stated by suitable averments: Harmon v. Ashmead, 60 Cal. 438.

3 Code of Civil Procedure, section 1190: “No lien provided for in this chapter binds any building, min