Underhill v. Corwin

• Citation: 1854 WL 4736,15 Ill. 556,5 Peck 556
• Parties: HENRY W. UNDERHILLv.IRA CORWIN et al.
• Decision Date: 30 June 1854
• Court: Supreme Court of Illinois

15 Ill. 556
1854 WL 4736 (Ill.)
5 Peck (IL) 556

HENRY W. UNDERHILL
v.
IRA CORWIN et al.

Supreme Court of Illinois.

June Term, 1854.

THIS cause was heard by LELAND, judge, at November term, 1852, of La Salle circuit court.

GLOVER & COOK, for plaintiff in error.STRAIN, for defendants in error.

SCATES, J.

The objection made to the printers' certificate of the publication of notice is not well taken.

The statute (R. S. 45, 94, § 8) requires the publication to be made for four successive weeks, and this certificate states that the notice “was inserted in said paper, commencing with August 21, 1852, and ending October 2, 1852, six weeks.” We examine the certificate as proof, and not for criticism as grammarians. We are not allowed from it to doubt of the publication having been made for four successive weeks within those periods.

[15 Ill. 557]

Defendants filed this petition to enforce a mechanic's lien on lots 1, 2 and 7, in block 72, in La Salle, for work and materials upon a house situated on lot 7. The contract was made with F. Kenyon, one of the plaintiffs, who is alleged to be the owner of lots 1 and 2, but who had no title to lot 7, but who was in possession of it at the time, and had inclosed it in a common fence with the other two lots.

The petition further shows that Underhill, after this work was done, purchased lots 1 and 2, and the house on lot 7, and removed the house to lot 1. On proof of the debt, the court decreed a sale of lots 1 and 2 to satisfy it.

This decree is erroneous, for, according to the construction we put upon the statute, the petition shows that defendants have no lien upon these lots for this labor and materials.

In Higgins et al. v. Ferguson et al. 14 Ill. R. 269, the lien was expressly put upon the ground of fraud in the owner of the lot, who stood by and connived at the representations of the party that he was owner, and under that character obtained the building materials, which were used in a house upon his lot and to his benefit.

This is a special statutory lien and remedy, and however politic it might be to extend it to analogous cases and make it more general in its application, we can...