Sec. 519. Statutes confining other prior liens to the land-Determining value. Under Ind. Rev. Stat., 1894, § 7256, a mechanic's lien has priority as to the buildings for the erection of which it is sought to be enforced, over a prior mortgage given on the land although the same was given to secure a debt for labor and materials used in the construction of such buildings. Carriger v. Mackey, 15 Ind. App. 392 (44 N. E. Rep. 266). Applying Iowa Code, § 2135, subd. 4, which provides that a lien for material and labor "shall attach to buildings, erections or improvements for which they were furnished or done, in preference to any prior lien or incumbrance or mortgage upon the land upon which such erection, building or improvement belongs, or is erected or put," it is held that a mechanic's lien acquired on account of the erection of a house by one having possession under a contract of purchase providing for his erection of such house, is superior, as to the building, to the lien of the vendor for purchase money which he could enforce by declaring a forfeiture of the contract, although it provided that upon such forfeiture all the improvements should pass to the vendor. · Iowa Code, §§ 2130, 2136, applied. Jameson v. Gile, 98 Ia. 490 (67 N. W. Rep. 396). Construing and applying a statute (Tex. Act, April 5th, 1889) giving priority to mechanics' liens as to the building giving rise to their creation, over other liens on the land, and providing for its removal and sale for their satisfaction, it is held that where several mechanics' liens have been acquired on account of the construction of a building upon land subject to a prior vendor's lien, and such land can not be sold separate from the building nor the building be removed without great damage, the court should order the sale of both together, limiting the right of the holder of the vendor's lien in the proceeds to the relative of the land without the building. Land Mortgage Bank v. Quanah Hotel Co., 89 Tex. 332 (34 S. W. Rep. 730). Citing, Whitehead v. Protestant Church, 15 N. J. Eq. 135; Bradley v. Simpson, 93 Ill. 93. Applying Sayles' Tex. Civ. Stat.. Art. 3171, providing that mechanics' liens for labor and materials used in the erection of a building on land shall, as to such building, have preference over a prior mortgage on the land, it is held that where a mortgagee of premises allows insurance money

realized from the destruction of buildings thereon to be applied to the erection of new buildings, liens acquired on account of such erection have priority, as to the buildings, over the mortgage. Peoples Bldg. L. & Sav. Ass'n v. Clark, Tex. Civ. App (33 S. W. Rep. 881).

Construing Va. Code, § 2483, which provides that "any lien or incumbrance created on the land before the work was commenced or materials furnished shall be preferred in the distribution of the proceeds of sale only to the extent of the value of the land, estimated, exclusive of the buildings or structures, at the time of sale, and the residue of the proceeds of sale shall be applied to the satisfaction of the liens provided for in the previous sections of this chapter,"—that is, to the mechanics' liens, the Supreme Court of Appeals of that state say: "It is very clear that the prior incumbrancer is to have the benefit of his lien upon the land to the extent of the value thereof, exclusive of the buildings or structures placed thereon since the lien was created, and that its value is not to be ascertained as of some other time, when the land may have been worth more or less in the market, but is to be ascertained at the time the liens are enforced by the court. It is to be ascertained at the time of sale. Nor can there be any doubt as to the manner whereby it is to be ascertained. It is to be ascertained by estimation. It is to be fixed by the court, either from evidence submitted directly to it, or through the finding of a commissioner, subject to review by the court, as in other chancery causes. But the value is to be estimated, and fixed by the court before the property is sold; and the prior incumbrancer, as to the sum so fixed is to be preferred in the distribution of the proceeds of the sale. This amount, however, is all that he can obtain from the proceeds of sale until the mechanics having liens thereon are satisfied; and they are entitled to the residue of the proceeds of sale for the payment of their liens, if not more than sufficient for that purpose, or, if more than sufficient, to so much as may be requisite to satisfy them." Fidelity Loan & T. Co. v. Dennis, 93 Va. 504 (25 S. E. Rep. 546).

Sec. 520.

An

Subcontractors and material men. equitable lien upon real estate does not result from the sale of

personal property, even though such personal property was furnished for, and used in the erection of, buildings upon such real estate. To obtain a lien in such cases, proper steps must be taken under the statute concerning liens. Slack v. Collins, 145 Ind. 569 (42 N. E. Rep. 910). A laborer for a contractor cannot, by a mere common-law suit against the latter and garnishment proceedings against the owner of realty upon which the contractor had agreed to build a house, enforce against such owner an alleged lien for labor done for the contractor upon the house, but can only do so by proper proceedings under the statute in such cases provided. Kimball v. Moody, 97 Ga. 519 (25 S. E. Rep. 338). Where material is usually delivered in certain packages, it is proper to charge for it as packed, although the small material constituting the package does not literally go into the construction of the building. Snell v. Payne, 115 Cal. 218 (46 Pac. Rep. 1069). One lien may be enforced for materials furnished at different times under one contract. Premier Steel Co. v. McElwaine-Richards Co., 144 Ind. 614 (43 N. E. Rep. 876). A lien cannot be enforced for materials sold under a general sale without any reference as to when, where and for what purpose they are to be used. Colorado Iron Works v. Riekenberg, Idaho

(43 Pac. Rep. 681). In Connecticut a lien cannot be enforced for material furnished a subcontractor merely with the knowledge and consent of the land owner. Alderman v. Hartford & N. Y. Transp. Co., 66 Conn. 47 (33 Atl. Rep. 589). A lien is not created in favor of one furnishing materials to a contractor by the landowner's subsequent promise to pay therefor. Gibson v. Wheeler, 110 Cal. 243 (42 Pac. Rep. 810). One furnishing materials to a plumber who has an independent contract with the owner for plumbing a building may have a lien. Owen v. Johnson, 174 Pa. 99 (34 Atl. Rep. 519). A manufacturer selling building material to a merchant in the usual course of trade, without any knowledge or understanding that it is to enter into any particular building, cannot enforce a lien for material sold by the merchant to the owner of a building and used in its construction. Van Cleve Glass Co. v. Erratt, 110 Mich. 659 (68 N. W. Rep. 978). Where there is nothing due the contractor at the time of the filing of the subcontractor's lien and the contractor

abandons the undertaking without just cause, but the owner completes the building according to the contract, and under å provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed. Campbell v. Coon, 149 N. Y. 556 (44 N. E. Rep. 300; 38 L. R. A. 410); Jarvis v. State Bank, 22 Colo. 309 (45 Pac. Rep. 505; 55 Am. St. Rep. 129).

Sec. 521.

Subcontractors and material men-How far rights of are affected by the principal contractor's contract. A subcontractor is charged with the knowledge of the terms and conditions of the contract between the owner and original contractor, and he is not entitled to an enforcement of his lien in such a manner as to defeat and destroy the fulfillment of the contract in accordance with its conditions and stipulations, lawfully entered into by the owner with the principal contractor. McCrary v. Bristol Bank & Trust Co., 97 Tenn. 469 (37 S. W. Rep. 543). Subcontractors cannot obtain liens in excess of the amount which the owner has agreed to pay the original contractor. Main Street Hotel Co. v. Horton Hardware Co., 56 Kan. 448 (43 Pac. Rep. 769). Under N. C. Code, §§ 1801, 1802, a subcontractor cannot enforce a lien where neither at the time he gives notice or afterwards is there anything due the contractor. Clark v. Edwards, 119 N. C. 115 (25 S. E. Rep. 794). A surety upon the bond of a contractor providing that he will complete his contract and deliver the building to the obligee "free from all charges, claims, liens, mechanics' liens, or any incumbrance or debt in the nature of a lien or charge, of any kind whatsoever," cannot have a lien for material furnished to such contractor. Rynd v. Pittsburg Natatorium, 173 Pa. 237 (33 Atl. Rep. 1041). To the same effect, see Gannon's Ex'rs v. Central Presb. Church, 173 Pa. 242 (33 Atl. Rep. 1043). The act of April 13, 1894 (91 Ohio Laws, 135), in so far as it gives a lien on the property of the owner to subcontractors, laborers, and those who furnish machinery, material, or tile to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract are bound by the terms of the contract between him and the

owner. Minshall, J., dissenting. Palmer v. Tingle, 55 0. St. 423 (45 N. E. Rep. 313). As to whether the statutory right of a subcontractor to a lien may be cut off by an agreement of the contractor to waive his right to a lien, and for construction of particular contract held not to have that effect, see Jarvis v. State Bank, 22 Colo. 309 (45 Pac. Rep. 505; 55 Am. St. Rep. 129). Cal. Code Civ. Proc., § 1184, applied— enforcement of subcontractor's lien when original contractor's contract is void. Coss v. McDonough, 111 Cal. 662 (44 Pac. Rep. 325).

In Iowa it is held that a subcontractor is bound by the terms of the contract between his principal and the owner, and in the absence of some reservations therein by the latter to the contrary he may make payments to the principal according to the contract although he knows that labor and material are not paid for. Epeneter v. Montgomery Co., 98 Ia. 159 (67 N. W. Rep. 93). The court say: "If the subcontractor is bound by the terms of the original contract, if, when he enters into contractual relations with the principal contractor, he must take notice of and be governed by the provisions of his principal's contract with the owner, of which there can be no doubt; then such subcontractor must be held to assent to the payment to the contractor in accordance with the terms of the contract, and he cannot thereafter be heard to say that, as to him, such payments were not properly made; and the fact that in such a case the owner may know that subcontractors have furnished the labor or material for the building, which has not been paid for, constitutes no reason for his withholding payments from the principal contractor, which are due by the terms of the contract, in the absence of a provision therein permitting such owner to pay subcontractors out of the funds due the principal contractor. In other words, we hold that the owner may make such a contract as he sees fit, so long as it is legal, and may make any provisions as to the time and manner of payment he chooses, and such contract he has the absolute right to comply with, in all respects, regardless of his knowledge of subcontractors, and that they have furnished labor or material which has gone into said building, and has not been paid for, unless he has, by the terms of his contract, reserved the right to