journeymen, laborers and all persons performing labor or furnishing material or machinery for erecting, altering, repairing or removing any house, mill, manufactory, or other building, bridge, reservoir, system of water works, or other structure, may have a lien separately or jointly upon the house, mill, manufactory, or other building, bridge, reservoir, system of water works, or other structure which they may have erected, altered, repaired or removed or for which they may have furnished material or machinery of any description, and on the interests of the owner of the lot or land on which it stands, or with which it is connected, to the extent of the value of any labor done, or material or machinery furnished or both, and all claims for wages for mechanics and laborers employed in or about any shop, mill, wareroom, storeroom, or manufactory, shall be a first lien upon all the machinery, tools, stock of material, or work finished or unfinished, located in or about such shop, mill, wareroom, storeroom, or manufactory, or used in the business thereof; and should the person, firm or corporation be in failing circumstances, the above mentioned claims shall be preferred debts, whether notice of lien be filed or not.

8220. [5294] Lien, extent of- Non impairment, when. § 2. That section 2 of an act entitled "An act concerning liens of mechanics, laborers and material men," approved March 6, 1883, be and the same is hereby amended to read as follows: Section 2. The entire land upon which any such building, erection or other improvement is situated, including that portion not covered therewith, shall be subject to lien to the extent of all the right, title and interest owned therein by the owner thereof, for whose immediate use or benefit such labor was done or material furnished; and, where the owner has only a leasehold interest, or the land is incumbered by mortgage, the lien, so far as concerns the buildings erected by said lien holder, is not impaired by forfeiture of the lease for rent or foreclosure of mortgage; but, the same may be sold to satisfy the lien and removed, within ninety days after the sale, by the purchaser.

8221. [5295] Proceeding to acquire. § 3. That section 3 of said act be, and the same is hereby, amended to read as follows: Section 3. Any person wishing to acquire such lien upon any property, whether his claim be due or not, shall file in the recorder's office of the county, at any time within sixty days after performing such labor or furnishing such materials, or machinery, or article, or thing, or consideration, or rendering such consideration described in section 1, notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth the amount claimed, and giving a substantial description of such lot or land on which the house, mill, manufactory, or other building, bridge, reservoir, system of water works, or other structure may stand or be connected with or to which it may be removed. Any description of the lot or land in a notice. of a lien will be sufficient if, from such description or any reference therein, the lot or land can be identified.

8222. [5298] Lien, how enforced. § 4. That section six (6) of said act be and the same is hereby amended to read as follows: Any person having such lien may enforce the same by filing his complaint in the circuit or superior court of the county where the labor was performed, or the materials, machinery, articles, things, or service furnished or rendered at any time within one year from the time when said notice has been received for record by the recorder of the county, or if a credit be given, from the

expiration of the credit, and if said lien shall not be enforced within the time prescribed by this section, the same shall be null and void, and the court rendering judgment shall order the sale to be made, and the officers making the sale shall sell the property without relief whatever from valuation or appraisement laws.

8223. [5296] Notice - Record. § 5. That section 4 of the above entitled act be and the same is hereby repealed.

8224. [5303a] Of railroad contractors. § 6. That section one of an act entitled "An act to amend section 12 of an act entitled An act concerning mechanics, laborers and material men," approved April 13, 1885, be amended to read as follows: Section 1. All persons who shall perform work or labor in the way of grading, building embankments, making excavations for the track, building bridges, trestle work, works of masonry, fencing or any other structure, or who shall perform work of any kind in the construction or repair of any railroad, or part thereof, in this state; and all persons who shall furnish any material for any such bridge, trestle work, work of masonry, fence or other structure, or who shall furnish any material for use in the construction or repair of any railroad, or part thereof, in this state, whether such work or labor be performed or such material furnished in the pursuance of a contract with the railroad corporation, building, repairing or owning such railroad, or whether such work or labor be performed or material furnished, in pursuance of a contract with any person, corporation or company engaged as lessee, contractor, sub-contractor or agent of such railroad corporation in the work of constructing or repairing any such railroad, or part thereof, in this state, may have a lien to the extent of the work or labor performed, or material furnished, or both, upon the right of way and franchises of such railroad corporation, within the limits of the county in which such work or labor may be performed or material may be furnished, and upon all works and structures mentioned in this section, that may be upon the right of way and franchise of such railroad corporation within the limits of such county. In case such work or labor shall be performed, or material furnished, in pursuance of a contract with any person, corporation or company engaged as lessee, sub-contractor or agent of any railroad corporation in the construction or repairing of any railroad, as heretofore mentioned in this section, the person performing such labor or furnishing such material shall not be required to give notice to such corporation, as is required of sub-contractors, journeymen and laborers in the ninth (9) section of said act, approved March 6, 1883, in order to entitle him to acquire and hold a lien for labor performed or material furnished under the provisions of this section, but the performance of such labor, or the furnishing of such material, shall be sufficient notice. to such corporation. All the provisions of said act, approved March 6, 1883, is, so far as they can be, made applicable to this section, except that part of the ninth (9) section thereof in reference to notice, shall apply to this section, and be in aid thereof. Liens thus acquired shall be enforced as other mechanics' liens are enforced in this state.

8225. Repealing clause. § 7. All laws and parts of laws in conflict. with the provisions of this act are hereby repealed; but, no lien acquired, or pending suit, or proceeding based upon such lien under any law hereby repealed shall be affected by such repeal.

8226. Emergency. § 8. An emergency exists for the taking effect of this act; it shall, therefore, be in force from and after its passage.

A BILL to repeal section five (5) of an act entitled "An act concerning liens of mechanics, laborers and material men," amending section one (1), two (2), three (3), and six (6) of an act entitled "An act concerning liens of mechanics, laborers and material men," approved March 6, 1883; repealing section five (5) of said act; amending section one (1) of an act entitled "An act concerning liens of mechanics, laborers and material men," approved April 13, 1885; repealing all laws and parts of laws in conflict therewith, and declaring an emergency, approved March 9, 1889, and to repeal section five (5) of an act entitled "An act concerning liens of mechanics, laborers and material men," approved March 6, 1883, and declaring an emergency. [Approved and in force February 24, 1891; S., 1891, p. 28

8227. Repealing act. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section five (5) of an act entitled "An act concerning liens of mechanics, laborers and material men," amending sections one (1), two (2), three (3), and six (6) of an act entitled "An act concerning liens of mechanics, laborers and material men," approved March 6, 1883, repealing section five (5) of said act, amending section one (1) of an act entitled "An act concerning liens of mechanics, laborers and material men," approved April 13, 1885, repealing all laws and parts of laws in conflict therewith and declaring an emergency, approved March 9, 1889, be and the same is hereby repealed.

8228. [5297] Repealing act. § 2. That section five (5) of an act entitled "An act concerning liens of mechanics, laborers and material men," approved March 6, 1883, be and the same is hereby repealed.

8229. Emergency. § 3. As an emergency exists therefor, this act shall be in force from and after its passage.

AN ACT providing for the release of liens in deeds of conveyance of real estate. [Approved and in force March 9, 1889; S., 1889, p. 353.

8230. Vendor's lien - Release on record-Effect. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That every grantor in a deed of conveyance to real estate which has been placed upon record, in which deed such grantor has retained a lien for purchase money or other purpose on the real estate so conveyed, shall, when full satisfaction of said lien shall have been received by the grantor, his assign or his lawful agent, and at the request of such grantee or other person authorized to make such request, enter satisfaction of such lien on the margin of the record thereof, or in other proper place on such record, which shall operate as a complete release and discharge of such lien forever.

8231. Release by certificate. § 2. That when such lien shall not have been satisfied as provided in section one of this act, the grantor, his assign or his lawful agent, at the request of the grantee or other person authorized, shall be required to make a certificate thereof, duly acknowledged by the grantor, his assign or his lawful agent, as is required for the acknowledgment of conveyances to entitle the same to be recorded, which certificate and acknowledgment shall be recorded by the recorder in whose. office such deed is recorded, with reference to the book and page containing the recorded deed, and such recorded certificate shall forever discharge and release the lien aforesaid.

8232. Emergency. § 3. Whereas, an emergency exists for the immediate taking effect of this act, the same shall therefore be in force from and after its passage.

85

NOTES TO CHAPTER 79.

LIENS.

5276. Of attorney, how made. Notice of the attorney of his intention to hold a lien on a judgment he obtains should be taken at the time the judgment it is intended to bind is taken and that is the judgment of the trial court (Day v. Bowman, 109-383). Therefore, an attorney does not acquire a lien on a judgment obtained for a client, even as against a subsequent assignee, unless notice is entered at the time the judgment is so rendered; Alderman v. Nelson, 111-256.

5280. Proceedings to enforce. Construing this section in connection with the thirty-fourth subdivision of section 3106 the plain meaning is that the claims for which a city may have a lien and an attachment against a boat, vessel or watercraft, for landing, wharfage or dockage are such as have been contracted on behalf of the boat, vessel or watercraft by the owner, master, clerk or consignee; as the action for the enforcement of the lien is a proceeding in rem, however, it proceeds on the theory that the debt or claim was contracted by the boat, vessel or watercraft against which the attachment is directed; hence the statutory expression that the class of claims referred to "shall be a lien upon the boat, vessel or watercraft contracting the same; " A Coal Float v. Jeffersonville, 112-20.

By section 3106, subdivision 34, cities are expressly authorized to establish and construct wharves, docks, piers and basins, to regulate landing places and to fix the rates of wharfage and dockage as well as of landing. Under a literal construction of that clause a boat, vessel or watercraft may contract a debt for landing, wharfage and dockage. Construing the subdivision in connection with this section, the plain meaning is that the claims for which a city may have a lien and an attachment against a boat, vessel or watercraft for landing, wharfage or dockage, are such as have been contracted on behalf of such boat, vessel or watercraft, by the owner, master, clerk or consignee. A Coal Float v. Jeffersonville, 112-20.

5292. For feeding stock. The language employed in this section is general in its character. It does not seem to have been the intention of the legislature to do more than to create a lien in favor of the class of persons named. It is fair to presume that it was intended to place such persons on a common plane with other lien holders, the first in the order of time having superiority. Therefore, the lien created in favor of an agister is subordinate to the lien of a prior recorded mortgage; Hanch v. Ripley,

127-153.

5293. Mechanic and material man's lien. The right to a mechanic's lien is determined by the law in force when the material is furnished or the labor performed. The lien can not be taken away nor can the remedy for its enforcement be materially impaired. If the statute giving it is repealed courts will still enforce it in accordance with the remedy given by the repealed statute. If, however, the repealing act provides an adequate remedy the lien must be enforced according to the law in force at the time of commencing the action; Goodbub v. Estate etc., 127-191.

The acquisition of a mechanic's lien results from a compliance with the requirements of the statute. It is not affected by the consequences which flow from its acquisition; F. Loan etc. Co. v. C. & St. L. Ry. Co., 127-253.

5294. Extent of lien. A mechanic's lien for repairing an article extends to the entire article. The whole of such article must be sold in order to enforce the lien; F. L. & T. Co. v. C. & St. L. Ry. Co., 127-253.

Laborers and material men who are employed to do work or furnish material, the employer having the then present purpose to continue the work to the completion of a building, the foundation for which is then being prepared, are entitled to acquire alien under the statute. If the work be performed or the materials furnished for the use or purpose designated in the statute, the right to acquire a lien is complete. The right to a lien is not to be defeated for the reason that the owner, for any cause, fails to complete the work; Scott v. Goldinghorst, 123-270.

5295. Proceeding to acquire. (1) The notice of an intention to hold a mechanic's lien may include more land than should be sold to discharge the lien. In such a notice if the intention is declared to hold a lien on several lots, the numbers of which are given, and "the dwelling house erected thereon," it is, in that regard, sufficiently certain. (2) Under a notice which contains a description so uncertain as to afford no clue to a more definite and correct description no lien can be acquired. (3) Where the description in such notice is so defective as to be insufficient per se to identify any particular tract of land, but if, with the aid of proper averments, it can be rendered definite and certain by the introduction of extrinsic evidence, it will be held sufficient for the purpose intended, and a true description may be supplied at the hearing. (4) Where such notice fails to disclose the county and state in which the real estate upon which the lien claimed is situate, but the complaint for the foreclosure of the lien avers that the land is situated in the county where the action is pending, that the parties all resided in that county when the notice was filed and that the notice was recorded in the recorder's office of the same county, these averments, taken in connection with the judicial cognizance of the court that a section of land, corresponding generally with the one described in the notice, lies within that county, are sufficient to supply and cure the defect; White v. Stanton, III-542.

The notice which is furnished may include more land than is necessary to discharge the lien or that can be sold to enforce it; this, however, will not render the lien invalid nor does it necessarily render it indefinite; Scott v. Goldinghorst, 123-270.

A mistake in the notice of one who is seeking to enforce a mechanic's lien by which the account between the parties is overstated so that the mechanic claims a lien for an amount in excess of the sum due him which has not operated to the prejudice of any one will not defeat the lien. Nor will a failure to state, in the notice of intention to hold a lien, that the claim is due, impair the notice as between the original parties. Third persons may treat a claim as due where there is no statement in the notice that credit has been given; Albrecht v. Foster L. Co., 126–318.

5296. Notice - Record. It is not necessary that the notice filed in the recorder's office, of an intention to hold a lien, should contain an itemized statement of the account. It is sufficient if there is a statement of the specific amount for which the lien is claimed; Nelley v. Searight, 113-320.

5297. Notice to owner. The notice required by the provision of this section need not be in writing (Vinton v. B. & M. Assoc., 109-351). The purpose, however, of the notice required is to enable the owner of the property to take such steps, for his own protection, as he may deem necessary, by way of contract with the contractor or otherwise, so as not to be compelled to pay twice for the same improvement. The notice is a condition precedent to the right to acquire a lien and one who seeks to avail himself of the benefit of a purely statutory right must bring himself fairly within the provisions of the enabling statute by complying with its terms. Mere personal knowledge of an owner, that a particular person is furnishing material to the contractor, does not supply a sufficient notice on which the material man can predicate a mechanic's lien on the property of the owner. It follows that where a material man, in a conversation held with the owner of a building in process of erection, informed such owner that he was furnishing material for the building-without more he did not thereby give such a notice as is required or contemplated by this section; Caylor v. Thorn, 126-202.

The notice required, by this section, to be given to the owner or his agent that work is being done for or that materials are being furnished to the contractor, may be by parol. In order, however, to create the lien, it is a fundamental requirement that the owner be notified as the statute requires and, while no particular form of notice is prescribed, it must be by some affirmative act or declaration which puts the owner on his guard or warns him that the initiatory step to the acquisition of a lien is being taken. Mere personal knowledge of the owner, obtained by matter in pais, that persons are performing labor or furnishing materials to the contractor, does not supply a statutory notice on which the person performing the labor or furnishing the materials can predicate a mechanic's lien on the owner's property; Neeley v. Searight. 113-318.

5298. Lien, how enforced. Over the question of the enforcement of his lien, the lien holder has no control. He has a right to have the lien enforced as the law directs; not otherwise. He must pursue the terms of the statute; F. L. & T. Co. v. C. & St. L. Ry. Co., 127-253.