MECHANICS' LIENS.

SEC. 3172. Mechanics and others to have liens, when -Every mechanic or other person who shall do or perform any labor or work upon, or furnish any materials, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof or his agent, trustee, contractor or sub-contractor, upon complying with the provisions of this article, shall have, for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished, a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; or, if such building, erection or improvement be upon any lot of any land in any town, city or village, then such lien shall be upon such building, erection or improvements and the lot or land upon which the same are situated, to secure the payment for such work or labor' done, or materials, fixtures, engine, boiler or machinery furnished as aforesaid.

SEC. 3173. The amount of property subject to lien.-The entire land, to the extent aforesaid, upon which any such building, erection or other improvement is situated, including as well that part of said land which is not covered with such building, erection or other im provement, as that part thereof, which is covered with the same, shall be subject to all liens created by this article, to the extent and only to the extent of all the right, title and interest owned therein by the owner or proprietor of such building, erection or other improvement, for whose immediate use or benefit the labor was done or things were furnished.

SEC. 3174. Priority of lien over other encumbrances.-The lien for the things aforesaid, or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien or incumbrance or mortgage, upon the land upon which said buildings, erections, improvements or machinery have been erected or put; and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter.

SEC. 3175. Lien in cases of leased property.-Every building or other improvement erected, or materials furnished, according to the provisions of this article, on leased lots or lands, shall be held for the debt contracted for, or on account of same, and also the leasehold term for such lot and land on which the same is erected; and in case the

lessee shall have forfeited his lease, the purchaser of the building and leasehold term, or so much thereof as remains unexpired under theprovisions of this article, shall be held to be assignees of such leasehold term, and as such shall be entitled to pay to the lessor all arrears of rent or other money, interests and costs due. under said lease, unless the lessor shall have regained possession of the leasehold land or obtained judgment for the possession thereof on account of the non-compliance by the lessee with the terms of the lease, prior to the commencement of the improvements therein; in which case the purchaser of the improvements, under this article, shall have the right only to remove the improvements within sixty days after he shall purchase the same, and the owner of the ground shall receive the rent due him, payable out of the proceeds of the sale, according to the terms of the lease, down to the time of removing the building.

SEC. 3176. Lien to be filed with circuit clerk.-It should be the duty of every original contractor, within six months, and every journeyman and day laborer within thirty days, and of every other person seeking to obtain the benefit of the provisions of this article, within four months after the indebtedness shall have accrued, to file with the clerk of the circuit court of the proper county, a just and true account of the demand due him or them, after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall in all cases be verified by the oath of himself or some credible person for him.

SEC. 3177. Clerk shall make abstract of lien.-It shall be the duty of the clerk of the circuit court to endorse upon every account the date of its filing, and make an abstract thereof, in a book by him to be kept for that purpose, and properly endorsed and indexed, containing the date of its filing, the name of the person seeking to enforce the lien, the amount claimed, the name of the person against whose property the lien is filed, and a description of the property charged with the same, for all which the clerk shall receive as full compensation the sum of one dollar from the person filing the account or seeking to enforce the lien, which shall be taxed and collected as other costs, in case there be an action thereon.

SEC. 3178. Lien shall have precedence over all subsequent encumbrances. The lien for work and materials, as aforesaid, shall be preferred to all other encumbrances which may be attached to, or upon such buildings, bridges or other improvements, or the ground, or either

of them, subsequent to the commencement of such buildings or improvements.

SEC. 3179. Pleadings, etc., to be as in other civil cases.-The pleadings, practice, process and other proceedings in cases arising under this article, shall be the same as in ordinary civil actions, and proceedings in circuit courts, except as herein otherwise provided. The petition, among other things, shall allege the facts necessary for securing a lien under this article, and shall contain a description of the property charged therewith.

SEC. 3180. Who may be made parties.-In all suits under this article, the parties to the contract shall, and all other persons interested in the matter in controvery, or in the property charged with the lien, may be made parties, but such as are not made parties will not be bound by any such proceedings.

SEC. 3181. When administrator to be made party.-In case of the death of any of the parties specified in the next preceding section, whether before or after suit brought, the executor or administrator of such deceased party shall be made plaintiff or defendant as the case may require, and it shall not be necessary to make the heirs or devisees of such deceased person, parties to said suit; but if there is no executor or administrator of such deceased person, then his heirs or devisees may be made parties, and if any of said heirs or devisees are minors under the age of twenty-one years, their guardians shall be made parties with them; but if such minor shall have no guardians, the court in which the suit is pending, shall appoint guardians ad litem for them, in the same manner and under the same rules and regulations as guardians ad litem are appointed in proceedings for partition of real estate, and the judgment and proceedings of such court in any such suits shall be as binding on such minors as if they were over the age of twenty-one years.

SEC. 3182. The judgment.-The court shall ascertain, by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted, and may render judgment therefor in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs, although the creditor may have unintentionally failed to enter in his account filed, the full amount of credits to which the debtor may be entitled.

SEC. 3183-Judgment by default.-Judgment shall be rendered by default against every defendant who, after being summoned or notified according to law, shall not appear and plead within the time allowed in ordinary civil actions.

SEC. 3184. Judgment in constructive notice.-When the debtor has not been served with summons according to law, and has not appeared,

but has been lawfully notified by publication, the judgment, if for the plaintiff, shall be that he recover the amount of the indebtedness found to be due, and costs of suit, to be levied on the property charged with the lien therefor, which said property shall be correctly described in said judgment.

SEC. 3185. Judgment in personal service.-When the debtor has been served with summons according to law, or appears to the action without service, the judgment, if for the plaintiff, shall be against such debtor as in ordinary cases, with the addition that if no sufficient property of the debtor can be found to satisfy such judgment and costs of suit, then the residue thereof be levied as provided in the next preceding section.

SEC. 3186. The execution -The execution to be issued shall be a special fieri facias, and shall be in conformity with the judgment, and such writ shall be returnable as ordinary executions, and the advertisement, sale and conveyance of real or personal estate, under the same, shall be made as under ordinary executions.

SEC. 3187. Action to be commenced in ninety days.-All actions under this article shall be commenced within ninety days after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist, by virtue of the provisions of this article, for more than ninety days after the lien shall be filed, unless within that time an action shall be instituted thereon as herein before prescribed.

SEC. 3188. Satisfaction to be entered, when.-Whenever any debt, which is a lien upon any building or other improvement shall be paid or satisfied, the creditor, if required, shall acknowledge such satisfaction upon the record of the margin thereof, in the office of the clerk of the circuit court, for which said clerk shall be allowed a fee of twentyfive cents.

SEC. 3189. Penalty for refusing to satisfy.-If any creditor refuse to enter satisfaction within ten days after payment and request, as aforesaid, he shall be liable to any person injured, to the amount of such injury and cost of suit.

SEC. 3190. Sub contractors and others to give notice.-Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this article, shall give ten days' notice before the filing of the lien as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting apart the amount and from whom the same is

due.

SEC. 3191. Duty of contractor when others file lien.—In all cases where a lien shall be filed, under the provisions of this article, by any person other than a contractor, it shall be the duty of the contractor to defend any action brought thereupon at his own expense; and during the pendency of such action, the owner may withhold from the contractor the amount of money for which such lien shall be filed; and in case of judgment against the owner or his property, upon the lien, he shall be entitled to deduct from any amount due by him to the contractor, the amount of such judgment and costs, and if he shall have settled with the contractor in full, shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally the party liable.

SEC. 3192. Who construed as owner or proprietor.-Every person, including all cestius que trust, for whose immediate use, enjoyment or benefit, any building, erection or improvement shall be made, shall be included by the words "owner or proprietor" thereof, under this article, not excepting such as may be minors, over the age of eighteen years, or married women.

SEC. 3193. When proceeds to be divided pro rata.-The liens for work or labor done or things furnished, as specified in this article, shall be upon an equal footing without reference to the date of filing the account or lien; and in all cases where a sale shall be ordered and the property sold, which may be described in any account or lien, the proceeds arising from such sale, when not sufficient to discharge in full all the liens against the same without reference to the date of filing the account or lien, shall be paid pro rata on the respective liens; provided, such account or liens shall have been filed and suit brought as provided by this article.

SEC. 3194. Contractor defrauding, guilty of a misdemeanor.-Any contractor or sub-contractor who shall purchase materials on credit and represent at the time of purchase that the same are to be used in a designated building or other improvement, and shall thereafter use, or cause to be used, the said materials in the construction of any building or improvement other than that designated, without the written consent of the person from whom the materials were purchased, with intent to defraud such person, shall be deemed guilty of a misdemeanor, and on conviction, shall be punished by a fine not exceeding five hundred dollars.

SEC. 3195. Buildings on the same or adjacent lots.—When the improvement consists of two or more buildings united together, and situated upon the same lot or contiguous lots, or upon separate buildings upon contiguous lots, and erected under one general contract, it shall