Crowl v. Nagle

• Decision Date: 30 September 1877
• Citation: 1877 WL 9752,86 Ill. 437
• Parties: SAMUEL H. CROWLv.FRANCIS C. NAGLE et al.
• Court: Illinois Supreme Court

86 Ill. 437

1877 WL 9752 (Ill.)

SAMUEL H. CROWL

v.FRANCIS C. NAGLE et al.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Cook County; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. UPTON, BOUTELL & WATERMAN, for the appellant.

Mr. T. A. MORAN, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a proceeding in the Cook circuit court, to enforce a mechanic's lien. The petition was filed to the June term, 1872, in which Francis C. Nagle was complainant, and Clarissa Filkins, John L. Manning, and Charles P. Marsh were defendants, who appeared and answered, and to their answers replications were filed. At the June term, 1874, the petition was amended by making James E. Dalton a party petitioner. No further step seems to have been taken in the cause until at the November term, 1875, when the petition was further amended, on the motion of the petitioners, by making Samuel H. Crowl a defendant. Notice to him was given by publication, and at the March term, 1876, he put in a plea, duly verified, alleging that on January 16, 1873, Clarissa Filkins executed to one Edwin Rogers a trust deed of the premises described in the petition, to secure the payment of $1,000 in one year from the date thereof, with interest at ten per cent per annum, which deed was duly recorded on January 18, 1873. It then avers default in the payment, a sale by Rogers, on the application of the holder of the note, on February 23, 1874, and a conveyance thereof to him, Crowl, and further averring that he took immediate possession of the premises, and has ever since remained in possession; alleging that the suit and proceedings against him were commenced on November 11, 1875, more than two years after the completion of the contract set out in the petition, and more than two years after the last payment for labor and materials became due and payable as alleged in the petition. The plea further avers that this attempt to enforce a mechanic's lien is to the prejudice of defendant as a creditor, and to the prejudice of the incumbrance made by the said Clarissa Filkins, quoting the statute.

The plea was duly set down for argument, and the same was overruled by the court and a decree passed as prayed, directing the sale of the interest of defendant Crowl, as well as that of the other defendants, in satisfaction of the lien.

To reverse this decree Crowl appeals, insisting that no suit was instituted against him within six months after the last payment became due and payable, and that the same is a condition precedent to the enforcement of the lien to the prejudice of any creditor or any incumbrance, as in his plea alleged.

Section 28 of chapter 82, title “Liens,” is as follows: “No creditor shall be allowed to enforce the lien created under the foregoing provisions, as against or to the prejudice of any other creditor, or any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shall have become due and payable.” Rev. Stat. 1874, p. 668.

It is insisted by appellees that the institution of proceedings to enforce a lien against Clarissa Filkins, John L. Manning, and Charles P. Marsh, within the statutory time, was a compliance with the statute, and appellant could be made a party at any subsequent time before a final decree.

This involves the construction of the section quoted, which it has not received by any adjudication of this court to which we have been referred. The lien given to the mechanic and material-man, as against creditors and incumbrancers, is upon the condition that suit shall...