ute.

The lien follows the debt or contract out of which it arises. McDonald v. Kelly, 14 R. I. 335; Pensacola R. Co. v. Schaffer, 76 Ala. 233; Davis v. Bilsland, 18 Wall. (U. S.), 659; Murphy.v. Adams, 71 Me. 113. The doctrine of Pearson v. Tinker, 36 Me. 384, was expressly repudiated in the later case of Murphy v. Adams, 71 Me. 118. The rule asserted in Lawrence v. Caldwell, 10 Wis. 273, is virtually conceded to be wrong in Tewksbury v. Bronson, 48 Wis. 581, but is adhered to upon the rule of stare decisis. But we need not further pursue this line, for, as shown in Kerr v. Moore, 54 Miss. 286, and in Tuttle v. Howe, 14 Minn. 149 (Gil. 113), the overwhelming weight of authority sustains the rule long since asserted by this court. The cross complainants had a lien upon the uncompleted part of the road upon which they did work, and for which they furnished materials. Neither by the contract, nor by the acts done under it, was there any severance of the line as to them, for throughout the transactions between the parties, the line of road was treated as a continuous one, and the cross complainants were not bound to proceed against the part in the different counties separately. We do not understand the statute to confine the right to a lien to one county in cases where the work extends into two or more counties. The lien extends to the whole line of an uncompleted railroad, no matter how Lien where many counties it may traverse. The purpose of into several the statute is evident, and that purpose is to give counties. laborers, contractors, and material men a lien upon the railroad which their labor constructs, and for which their property is used. The legislature, it is manifest, did not intend to confine the lien to a line of road within a single county, and we cannot so construe the statute. The improper use of a single word cannot be allowed to thwart the intention of the legislature, as it is manifested by the entire legislation upon the subject. Here the only misuse of terms consists in employing the singular, "county" where, it is evident, the plural "counties," should have been used. It is our duty to give effect to the intention of the legislature, and this we do by adjudging that a lien fastens upon an entire and continuous line of unfinished road, and may be enforced in any one of the counties through which the road runs. The case is analogous to that of a mortgage embracing parcels of land lying in different counties, and in such cases it is well settled that suit to foreclose may be brought in any one of the counties. Holmes v. Taylor, 48 Ind. 169.

work extends

It is obvious that, if any other construction should be given the statute, its enforcement might often lead to injurious results. It would uselessly multiply suits, and it would divide

a line of

Lien enforce

able against entire road.

railroad so as to make it in some instances practically valueless. Reasoning upon an analogous question, the supreme court of the United States said, in Muller v. Dows, 94 U. S. 444: "A part of a railroad may be of little value when its ownership is severed from the ownership of another part, and the franchise of the company is not capable of division." So, we may say here, the franchise cannot be divided into fragmentary parts without injury to the public, to the owners of the road, and to the creditors. The public which grants these franchises have some interest in their exercise, and it is not to be presumed that the legislature meant to impair their interests. We have enforced this principle in analogous cases, and we enforce it here. Indiana, B. & W. R. Co. v. Allen, 113 Ind. 581; Louisville, N. A. & C. R. Co. v. Boney, 117 Ind. 510, 39 Am. & Eng. R. Cas. 168. It is always proper to look to consequences in construing statutes, and to adopt that construction, whenever there is obscurity, which will lead to a just result, and prevent wrong and confusion. U. S. v. Kirby, 7 Wall. (U. S.), 482; Rodman . Reynolds, 114 Ind. 148. But in this instance we find clear justification for our conclusion in the object which we know the statute was intended to accomplish, and, indeed, in the context of the statutes themselves, and these considerations unite with that suggested to strengthen and justify our judgment.

not in opera

tion.

The statute of 1885 gives a lien upon a railroad not in operation, and, in doing this, makes explicit what was before clearly implied. This, of course, excludes parties from Lien on road acquiring a lien upon that part of the road completed and in operation. In this instance the railroad was completed from Anderson to Noblesville, and no further; so that there was an uncompleted part extending from Noblesville to the line of Hamilton county, and on that part the lien fastened. Where a corporation having a line of railroad in operation to a town or city within a county contracts for the construction of a part of the road leading from such town or city to a point beyond the county limits, the contractors may acquire a lien upon the part which they construct, or aid in constructing, although a portion of it lies within the county in which a part of the road is completed and in operation. There is here no question of priority of liens, for here the original debtor is seeking to escape payment of the money due its contractors, and the only question is whether the contractors and their assignees have a lien which they can enforce. Whether the legislature could enact a lien law that would displace a prior mortgage we need not and do not inquire; for with that question we have now

no concern.

When the contract was entered into the contractors undoubtedly had a lien under the act of 1883, and the right to a lien was not taken away by the act of 1885; for that act more clearly defined the lien, and somewhat changed the procedure. Moreover, the contract executed while the act of 1883 was in force was accepted by the appellant, and a large part of the work was done after the act of 1885 was passed, and much of it, indeed, was done after that act went into effect. We are strongly inclined to the opinion that where the law gives a lien, and parties contract under that law, it is not competent for the legislature to entirely take away the lien, although it may change the mode of procedure. We need not, however, here decide this question, since, as we have seen, there was no interregnum in which there was no lien; for the later law made more effective the lien, but did not create a new one. It is not to be forgotten that when the contract was entered into the act of 1883 was in force, and the act of 1885 had been enacted, although it did not take effect until after the contract was executed; so that it is impossible to avoid the conclusion that the contract was made and was performed while there was a law in force giving a lien. This contract was in great part performed after the act of 1885 went into effect, and it may well be held that the security and the remedy are such as that law provides, even though it should be conceded that the later law made clear what was before obscure.

Notice of

The notice of the intention to hold a lien is in substantial conformity to the statute, and, as against the original party, this is all that is required. Neeley v. Searight, 113 Ind. 316; Peck v. Hensley, 21 Ind. 344. Where, as lien. here, a line of railroad, although it extends through two or more counties, is treated in the contract, and in the performance of the work under the contract, as a continuous line of road, the contractors are not required, as against the railroad company, however it may be as to mortgagees or judgment creditors, to divide the road into parts corresponding to the counties it traverses, and enforce the lien in each county separately. If a notice is filed in each county, it will be sufficient, although it does not divide the road into parts. In other words, one notice, filed in each of the proper counties, will cover the entire line, where it is included in one contract, and where the work has been done upon it and the materials furnished for it as a continuous line. It is not, to repeat what has been said, two separate parcels of property, and the cases deciding what must be done where there are two distinct and separate parcels of property are wholly irrelevant to the point in dispute. It is held in well reasoned

cases that, where there is a simple contract to erect buildings upon several lots, "the entire job may be put down as a single item." Doolittle v. Plenz, 16 Neb. 153; Manly v. Downing, 15 Neb. 637; Davis v. Hines, 6 Ohio St. 473; Thomas v. Huesman, 10 Ohio St. 152. We think this principle rules here. The decision in Hill v. Braden, 54 Ind. 72, does not oppose this conclusion; for there the buildings and the lots were separate and distinct parcels of property, while here there is only one parcel of property, and that is the continuous line of road from Noblesville to Lebanon. The estimates, as many of the cases hold, severed and divided the indebtedness, and each might have been assigned; but, in enforcing a lien, it would be necessary to make all interested persons parties to the suit. In this instance the plaintiff and cross Adjustment of complainants were certainly entitled to payment controversy. of the sums evidenced by the estimates, and, as the property was indivisible, it was proper to marshall all claims, and enforce them by one decree. The parties claiming under the estimates were neither bound to delay until the entire work was done, nor to sell the road in fragmentary parts; for the debt was due in installments, and there was a right to enforce the lien which secured it as soon as there was a default in payment. Indiana, B. & W. R. Co. v. Koons, 105 Ind. 507, 24 Am. & Eng. R. Cas. 376. Under the ruling in the well and strongly reasoned case referred to, it would not be proper to split the cause of action into parts; and it was therefore proper to bring suit for all that was owing under the contract, and to bring all the parties into court, so that the entire controversy could be adjusted by one final decree. As the appellant is the original debtor, it can make no difference to it whether the trial court was right or wrong in adjusting priorities, or in fixing the time when the lien accrued. If the cross complainants are content with the provision of the decree giving Wilcox priority, it cannot be cause for complaint by the debtor. The judgments rendered in favor of the material men and laborers, and paid by the appellant, constituted a payment to the cross complainants. having notice They were notified, as the evidence shows, of the pendency of these actions, and it was their duty to have defended them. The rule in analogous cases is that if one primarily liable is notified of the pendency of an action, and required to defend, he must do so, or he will be bound by the judgment. Chicago v. Robbins, 2 Black (U. S.), 418; McNaughton v. City of Elkhart, 85 Ind. 384; Morgan v. Muldoon, 82 Ind. 347.

Contractors

of action are bound.

The judgments referred to conclusively adjudicated the claims of the parties, and the cross complainants must credit

the appellant with their aggregate amount, for they cannot collaterally impeach these judgments.

cases.

We have considered all the material questions in the case, in whatsoever form they arise, and our ultimate conclusion is that the judgment in favor of Wilcox should be affirmed, and that the judgment in favor of the Disposition of cross complainants should be reversed, for the failure to allow the proper credit for the judgment rendered in favor of the laborers and material men. It is therefore adjudged that the judgment as to the cross complainants, Holleran and Ingerman, be reversed, and the cause remanded, with instructions to restate findings upon the questions growing out of the judgments in favor of laborers and material men, and the conclusion in reference thereto, and to deduct from the amount due the cross complainants the aggregate amount of such judgments. In all other respects than those indicated the judgment is affirmed, and it is ordered that the costs of this appeal be taxed against the appellees, Holleran and Ingerman, except such costs as affect the appellee, Wilcox, and as to those costs the judgment is that they be taxed against the appellant.

Mechanic's Lien—Assignment.-See Austin, etc. R. Co. v. Rucker, (Tex.), 12 Am. & Eng. R. Cas. 258; Nash v. Chicago, etc. R. Co. (Iowa), 12 Id. 261. Enforcement of Lien Against Road as Entirety.—See Ireland v. Atchison, etc. R. Co., (Mo.) 20 Am. & Eng. R. Cas. 493; Knapp v. St. Louis, etc. R. Co., (Mo.) 7 Id. 394; note 20 Id. 505.

Filing Claim-Proportion of Materials Furnished to Contractor and his Assignee. In Harmon v. San Francisco & S. R. Co., Cal. Sup. Ct., May 3, 1890, it was held that, under Cal. Code Civ. Proc., § 1187, which requires that the claim for a mechanic's lien should state the name of the person to whom the materials were furnished, a claim of lien filed by a material man against a railway company for materials furnished to a contractor and his assignee who assumed all the liabilities is sufficient, although it omits to show the portion of materials furnished to both the contractor and the assignee. The court said: "In Gordon Hardware Co. v. San Francisco & S. R. Co. (decided Oct. 4, 1889), the department held that the failure to designate what proportion of the materials were furnished to each of the contractors was fatal to the lien. Whatever may be the rule in ordinary cases where the material man furnishes materials to several independent contractors, we do not think it was necessary for the plaintiff to segregate the amounts in the claim which he filed. Hawley was the only person with whom the company had to settle. The latter was liable only for the balance of the contract price held by it. It was in no way interested in the question how much had been furnished McDonald before the assignment. Hawley had simply stepped into McDonald's shoes, with the knowledge and consent of the company, and had assumed all liabilities. There was but one contract on the part of the defendant. On final settlement McDonald was entitled to nothing, and we are unable to see how the company could be prejudiced by the failure to designate the amount furnished to each. No question of priority is involved herein. Where a statute required a claimant to state from whom the debt was due, it was held that a mistake in the name of the contractor would not defeat the lien if it 43 A. & E. R. Cas.-41