Langford v. Mackay
| Decision Date | 31 December 1882 |
| Citation | 12 Bradw. 223,12 Ill.App. 223 |
| Parties | CHARLES E. LANGFORD, etc.,v.DUNCAN MACKAY ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding. Opinion filed February 9, 1883.
Messrs. J. & W. J. MCCOY, for appellant; as to a mechanic's lien, cited R. S. 1874, Chap. 82, §§ 1, 2.
The court, by its decree, creates no lien, it only finds and declares it in existence: Clark v. Moore, 64 Ill. 273, 279.
Whatever interest the owner has in the land at the time of making the contract may be sold: R. S. 1874, Chap. 82, § 21; Reed v. Boyd, 84 Ill. 66.
Where there is a prior incumbrance on the land the material man has a first lien on the building and a second lien on the premises covered by the incumbrance: R. S. 1874, Chap. 82, § 17; Clark v. Moore, 64 Ill. 273; Northern Presbyterian Church of Chicago v. Jevne, 32 Ill. 214; Croskey v. N. W. M'f'g Co. 48 Ill. 481; Howett v. Selby, 54 Ill. 151.
In such case if the mortgagee succeeds to the title of mortgagor after mechanic's lien has attached, the merger will not defeat the lien: Dobschuetz v. Holliday, 82 Ill. 371; Kidder v. Aholtz, 36 Ill. 478; Gaskill v. Tramer, 3 Cal. 334; Cheney v. Bonnell, 58 Ill. 68.
Where the materials were furnished equitable owner and the legal owner is made party defendant with him, a decree that payment be made by equitable owner and in default by legal owner is proper: Lewis v. Rose, 82 Ill. 574; Singleton v. McBride, 17 Ill. 300.
The question of forfeiture must be raised by plea of limitation and be verified by affidavit: Dumphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, 86 Ill. 437.
Mr. F. D. RAMSAY for appellees; that, if the party who contracts for the material has no title to the premises, but simply a contingent interest, the lien will not attach upon the land, but only upon the interest of said party, cited Hickox v. Greenwood, 94 Ill. 266.
Suit must be instituted within six months as against creditors and incumbrancers: Cook v. Vreeland, 21 Ill. 431; Clark v. Manning, 4 Bradwell, 649; Dumphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, 86 Ill. 437.
Statutes in relation to mechanic's lien are in derogation of the common law and must be construed strictly: Stevens v. Homes, 64 Ill. 336; Rothgerber v. Dupuy, 64 Ill. 452; Canicius v. Merrill, 65 Ill. 57; Belanger v. Hersey, 90 Ill. 70.
Complainants must recover, if at all, upon the theory of their bill, and all questions to be considered must be within the scope of the pleading: Page v. Greely, 75 Ill. 400; Morton v. Smith, 86 Ill. 117; Walters v. Defenbaugh, 90 Ill. 241; Belanger v. Hersey, 90 Ill. 70; Gage v. Reid, 15 Chicago Legal News, 99.
On March 6, 1878, the firm of which appellant is survivor filed their petition against appellees to enforce a lien for the price of materials--sawed and dressed lumber and shingles--sold to Wilson to be used in the erection of a house on the N. W., N. E. 8, 22, 5, east, in Whiteside county. Both defendants appeared but Mackay alone made answer, to which a replication was filed, and upon reference to the master proofs were taken and reported. From these it appears that Wilson, being then the owner of a farm composed of two hundred acres in section 5, and one hundred and nineteen in section 8 of said township, including the tract above described, on the 2d day of February, 1877, borrowed of Mackay $11,000 for the security of which he executed a deed of said farm, taking back a bond to reconvey upon his payment of that sum with annual interest at ten per cent. No time was fixed for such payment, but the understanding was that he might retain possession so long as he paid the interest as it accrued. This was an equitable mortgage. He had occupied this place with his family during twenty-seven years. It was all fenced, but only the part in section 5 on which were the buildings, was under cultivation. His son Thomas having come to need a separate residence he made arrangements to erect at once a small frame house on the forty acre tract described. For that purpose on the 14th of February, 1877, he went to the office of the petitioners in Fulton, where he made out and contracted for the bill of materials here in question. A portion of it was hauled away by his team on the same day and the residue in parcels at different times thereafter--the most of it on the 16th, 17th, 19th, and 21st days of the same month, and the little that remained, being dressed lumber for finishing and casing, not until the 8th day of May.
It amounted in all to $141.87. The dispute upon the evidence is whether it was to be paid for in six months after all of it should be delivered, as alleged in the petition, or in six months after the date of the contract. If the latter, then this proceeding, not having been commenced within six months from the time payment was due, would be barred as against the respondent's mortgage by the limitation prescribed in section 28 of the Lien Act, R. S. 1874, Chap. 82, p. 668.
The circuit court so found, and therefore, while declaring petitioner's claim a lien upon Wilson's interest, ordered that in default of its payment by him as required, the premises be sold subject to said mortgage, and dismissed the petition as to Mackay, with costs.
Upon the point so in controversy, the defendant, Wilson, in his deposition says, “I got it on six months' time”; and George Sardam, who kept the books and attended to sales for the petitioners, and saw to the delivery and made the charges in this case “day and date as the lumber was delivered,” after stating the amount of the bill says, “the first was delivered on the 14th of February, 1877, and the last on May 8, 1877, to be paid for in six months from the time he got it.” Appellant and Thomas Wilson were also present when the contract was made, but the former was not called as a witness, and the latter was not interrogated on this...
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