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judgments, or claims secured by attachments shall have been established on the trial and the amount so paid shall be credited upon such mechanic's liens, judgments and claims. Upon such filing of such consent, as hereinbefore provided, the lien of all judg ments and attachments affecting such real property and all claims and liens acquired in any proceedings upon such judgments shall be subordinate in like manner and to like extent as hereinbefore in this section provided for the subordination of mechanic's liens, and in that case all judgments recovered upon, and attachments issued upon claims for materials furnished, labor performed or moneys advanced for the improvement of such real property shall thenceforth be of equal priority with all mechanic's liens on such property filed prior to the day on which is commenced a trial in a court of record of an action to foreclose or enforce a me-' chanic's lien affecting such real property; and any attachment. issued or judgment recovered upon a claim, which, in whole or in part, is not for materials furnished, labor performed or moneys. advanced for the improvement of such property shall be subordinate to all mechanic's liens thereon, and shall also be subordinate to all judgments recovered upon and attachments issued upon claims for materials furnished, labor performed or moneys advanced for the improvement of such real property. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

§30. Subordination of notices of lis pendens.

In case of subordination pursuant to the provisions of sections twenty-six, twenty-seven, twenty-eight or twenty-nine of this article all actions and proceedings upon such mechanic's liens and all notices of pendency of actions in any action brought to foreclose the same and all proceedings upon judgments and attachments, shall be subordinate in like manner and to like extent as provided in said sections, respectively, for the subordination of mechanic's liens, judgments and attachments. (Added by L. 1916, ch. 507, in effect

July 1, 1916.)

§31. Discharge of liens on sale of real property.

In case an owner of real property against which, or any part of which, mechanic's liens have been filed, desires to convey or trans

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fer an interest in such real property or any part thereof, and in case lienors having mechanic's liens against such real property, or any part thereof, filed prior to the making of the deposit hereinafter in this section mentioned, and which said liens have not been discharged as in this article provided, shall, to the extent of at least seventy-five per centum of the aggregate amount for which such liens have been so filed, by an instrument or instruments in writing, duly acknowledged, designate and authorize one or more persons to consent to the execution and delivery of a deed or deeds conveying said real property or any part thereof, and in case the consent in writing, duly acknowledged, of such person or persons to the execution and delivery of such deed or deeds, and which said consent shall be conditioned for the deposit of a specified sum of money with the clerk of such county, shall be filed in the office of the clerk of the county where such real property is situated, together with such instrument or instruments of designation, then on the deposit of such specified sum with such county clerk all mechanic's liens, judgments and attachments, and all claims and liens acquired in any proceeding upon such judgments or under such attachments against such real property shall from the time of such deposit cease to be liens or encumbrances upon such real property, and such real property shall thenceforth be free and discharged from the same, and the same shall thenceforth be liens upon such sum so deposited and from the date of the filing of such approval the respective mechanics' lienors, except those whose liens have been discharged as in this article provided, shall have no priority over each other with respect of their several liens, and their liens shall thenceforth be of equal priority, except that from the date of the filing of such approval all liens filed subsequent to the day preceding the day on which is commenced a trial in a court of record of an action to foreclose or enforce a mechanic's lien affecting such real property, shall be subordinate to the mechanics' liens filed prior thereto, and said county clerk upon such deposit being made shall forthwith enter upon the lien docket indexed to the name of such owner the facts relating to such deposit. A deposit

of money made as prescribed in this section shall be repaid to such owner or his assignee upon the discharge or release of all such mechanic's liens, judgments and attachments. All deposits of money made as provided in this section shall be considered as paid into court and shall be subject to the provisions of the code of civil procedure relative to the payment of money into court and the surrender of such money by order of the court. The court shall in any action brought to foreclose any of such liens or in any action brought to recover such deposit or any part thereof, direct the payment of such sum so deposited to the persons whose mechanic's liens, judgments, or claims secured by attachment shall have been established upon the trial, and the amount so paid shall be credited upon such mechanic's liens, judgments and claims. Upon such deposit being made as hereinbefore provided the lien of all judgments and attachments affecting such real property, and all claims and liens acquired in any proceedings upon such judgments or under attachments shall be liens upon such deposit of equal priority with such mechanic's liens, except that all judgments recovered upon and attachments issued upon a claim which, in whole or in part, is not for materials furnished, labor performed or moneys advanced for the improvement of such real property, shall be subordinate as a lien upon such sum so deposited to all mechanic's liens thereon, and shall also be subordinate to all judgments recovered upon and attachments issued upon claims for materials furnished, labor performed or moneys advanced for the improvement of such real property. In case such consent shall be conditioned also for the giving to one or more persons or a corporation as trustee or trustees any other property real or personal then any cash thereafter from time to time tendered by such trustee or trustees to such county clerk shall be received and held by such county clerk as though the same were part of the specified sum of money for the deposit of which such consent was conditioned, and for the same purposes and subject to the same provisions as in this section provided therefor. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

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§ 32. Certain liens and claims not to be affected.

The amendments contained in this act except section sixty-four shall not apply to mechanic's liens, attachments, judgments, or to claims or liens acquired in any action or proceeding upon such mechanic's liens, attachments or judgments, filed, docketed, entered or obtained prior to the date when this article, as amended, takes effect. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

§ 33. Certain sections not to apply to laborers' liens.

None of the provisions contained in sections twenty-six, twentyseven, twenty-eight, twenty-nine and thirty-one of this article shall apply to liens of laborers for daily or weekly wages. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

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ARTICLE 3.

ENFORCEMENT OF LIENS ON REAL PROPERTY.

SECTION 40. Construction of article.

41. Enforcement of a mechanic's lien on real property.

42. Enforcement of a lien under contract for a public improve

ment.

43. Action in a court of record; consolidation of actions.

44. Parties to an action in a court of record.

45. Equities of lienors to be determined.

46. Action in a court not of record.

47. How summons served, when personal service cannot be made. 48. Proceedings on return of summons; answer; judgment by default.

49. Issue, how tried; judgment.

50. Execution.

51. Appeals from judgments in courts not of record.

52. Transcripts of judgments in courts not of record.

53. Costs and disbursements.

54. Judgment in case of failure to establish lien.

55. Offer to pay money into court, or to deposit securities, in discharge of the lien.

56. Preference over contractors.

57. Judgment may direct delivery of property in lieu of money.

58. Judgment for deficiency.

59. Vacating of a mechanic's lien, by order of court.

60. Judgment in action to foreclose lien on account of public im

provement.

61. Judgment in action to foreclose a mechanic's lien on property of a railroad corporation.

62. Bringing in new parties.

63. Service of answer on state or municipal corporation.

64. Award of personal judgment by court or referee.

40. Construction of article.

This article is to be construed in connection with article two of this chapter, and provides proceedings for the enforcement of liens. for labor performed and materials furnished in the improvement of real property, created by virtue of such article.

Derivation: Code Civil Procedure, § 3398.

§ 41. Enforcement of a mechanic's lien on real property.

A mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal

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