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When owner may retain money, etc.

ure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee, as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within thirty days after such forfeiture or surrender is made.

SEC. 4. The owner, part owner or lessee may at any time retain from any moneys due or to become due to the original contractor, an amount sufficient to pay all demands owing or unpaid to any subcontractor, material-man or laborer, who

has filed and served the notice in manner and form as proContractor to vided in section one of this act. The original contractor make statement, etc.

shall, whenever any payment of money shall become due from the owner, part owner or lessee, or whenever he desires to draw any money from the owner, part owner or lessee on such contract, make out and give to the owner, part owner or lessee, or his agent, a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount, if anything, which is due or to become due to them or any of them for work done or materials furnished, and the owner, part owner or lessee, or his agent, may retain out of any money then due or to become due to the contractor, an amount sufficient to pay all demands that are due or to become due to such subcontractors, laborers and material-men, as shown by the contractor's statement, and pay the same to them according to their respective rights, and all payments so made shall, as between such owner, part owner, or lessee, and such contractor, be considered the

same as if paid to such original contractor. Until the stateWhen contractor ment provided for in this section is made, in manner and

form as herein provided, the contractor shall have no right of action or lien against the owner, part owner or lessee on account of such contract, and any payments made by the owner, part owner or lessee, before such statement is made, or without retaining sufficient money, if that amount be due or is to become due, to pay the subcontractors, laborers or material-men, as shown by the statement, shall be considered illegal and made in violation of the rights of the persons intended to be benefited by this act, and the rights of such

subcontractors, laborers and material-men to a lien shall not When statement be affected thereby. If neither such owner, part owner,

lessee nor his agent can be found within the county, then it shall not be necessary for the contractor to make and

deliver such statement as a prerequisite to the institution of Protection of proceedings under this act or other suit or proceeding. In

order that the owner, part owner, or lessee may be protected,

Owner may retain money, etc.

has no lien against owner, etc.

not needed.

owner.

he may at any time during the progress of the work demand in writing of the contractor, the statement herein provided for, which shall be made by the contractor and given to the owner, part owner or lessee, or his agent, and if such contractor fail to furnish such statement within five days after demand made, he shall be liable to such owner, part owner, or lessee, each time he so refuses or neglects to comply with such demand, in the sum of one hundred dollars, and also for all actual damages occasioned by such neglect or refusal, to be recovered in an action on the case or in any other appropriate proceeding.

SEC. 5. Every person, or his agent or attorney, whether statement to be contractor, subcontractor, material-man or laborer, who wishes Aded with reg. to avail himself of the provisions of this statute, shall make and file in the office of the register of deeds, in the county or counties in which said real estate, house, building, structure or improvement to be charged with the lien is situated, a just and true statement or account of the demand due him, over and above all legal set-offs, setting forth the time when such materials were furnished or labor performed, and for whom, and containing a correct description of the property to be charged with the lien, and the name of the owner, part owner or lessee, if known, which statement shall be verified by affidavit. Such verified statement or account shall be filed within sixty days from the date on which the . last of the materials shall have been furnished or the last of the labor shall have been performed by the person claiming the lien, which statement may be in the following form:

Form of,

STATE OF MICHIGAN,

ss.

County of A B, of

being duly sworn, says, that he furnished certain labor (or materials) in and for building (or altering, improving, repairing, erecting or ornamenting, as the case may be) a certain.. situated on the land hereinafter described, in, pursuance of a certain contract with CD, the owner (or part owner or lessee, contractor, subcontractor or other person, as the case may be). The performance of such labor (or the furnishing of such materials, or both) was begun on the.day of ..

18.--, and the last of such labor was performed (or such materials furnished, or both) on the

day of... 18.-; and there is justly and truly due deponent therefor from the said CD, over and above all legal set-offs, the sum of

dollars, for which amount deponent claims a lien on said land (or building) of which is the owner (or part owner, or lessee as the case may be) which premises are described as follows:

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Subscribed and sworn to before me this

--day of

18....

Duty of register of deeds.

Fee for filing, etc.

Service on owner, etc.

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The register of deeds shall indorse upon every statement or account, the date of its filing, and make an abstract thereof in a book to be kept by him for that purpose, and properly indexed, containing the date of its filing, the name of the person claiming the lien, the amount of the lien, the name of the person against whom the lien is filed, and a description of the property to be charged with the same, and such filing shall have the same effect as to notice as against subsequent purchasers or incumbrancers as the recording of a mortgage. The register of deeds shall receive the sum of seventy-five cents as his fees for the filing of such statement or account, and all subsequent papers filed with him relating to such lien.

SEC. 6. Every person filing such statement or account as provided in the preceding section shall, within ten days after the filing thereof, serve on the owner, part owner or lessee of such premises, or in his absence from the county, on his agent having charge of such premises, if either of such persons can be found within the county wherein the property is situated, a copy of such statement or claim; but if neither of such persons can be found within the county where such premises are situated, then such copy shall be served by posting the same in some conspicuous place on said premises, within five days after the same might have

been served personally, could the principal or agent, as Proof of service, aforesaid, have been found. Proof of such service and

the date and manner thereof shall be made by the affidavit of the person serving or posting the same, which proof of such service shall be filed in the office of the register of deeds for such county, before any subsequent proceedings

shall be taken for the enforcement of such lien. Discharge of len,

SEC. 7. The lien of any contractor, subcontractor, material-man or laborer may, at any time, be vacated and discharged, if the owner, part owner or lessee or contractor,

shall give to each of such persons whose liens are to be Flling of bond. discharged, and file with the clerk of the circuit court for

the county in which such property is situated, a good and sufficient bond in the penal sum of twice the amount for which the lien is claimed, with two or more sureties to be approved by the said clerk, conditioned for the payment of any sum for which the obligee in such bond may obtain judgment or decree upon the demand for which said statement of account was filed, which sureties shall justify their responsibility before such clerk or a circuit court commissioner under oath, and shall severally testify that they are each worth in real estate in the county in which such property is situated, over and above all exemptions, incum. brances, debts, and other liabilities, the penal sum of said

eto.

etc.

as

tract, etc.

bond, each of which justifications shall be indorsed in full on said bond; the said clerk, on filing such approved bond, Certificate of shall at once give to the obligor named therein, a certifi- county clerk. cate that a good and sufficient bond has been filed with him, as required by law, and shall state the names of the obligor and.obligee, the amount of the bond and description of the property covered by the lien thereby discharged. Upon the filing of said certificate in the office of said register of deeds, the lien of the obligee therein named, if of record, shall thereby be discharged.

SEC. 8. Each person claiming a lien as aforesaid shall, claimant to furfrom time to time, whenever required by such owner, part of material, etc. owner or lessee, or his agent, and within five days from demand thereof, furnish such person demanding the same, a written statement of the amount of work and materials furnished to date of statement, and then unpaid, as nearly as can then be ascertained, under penalty of a forfeiture of his lien. Such owner, part owner or lessee shall, within To show confive days after demand of any person claiming. lien aforesaid, produce the contract existing between himself and the contractors, if in writing, and freely permit such lien claimant to make a copy thereof, and shall also, within five days after demand thereof, furnish such lien claimant a written statement of the amount due and unpaid on such contract. If such owner, part owner or lessee shall neglect or refuse to allow any lien claimant to make a copy of said contract, or shall neglect or refuse to make such written statement of the amount due and unpaid thereon, as aforesaid, he shall be liable to such lien claimant, his representatives or assigns, each time he so refuses or neglects to comply with such demand, in the sum of one hundred dollars, and also for all actual damages occasioned by such neglect or refusal, to be recovered in an action on the

or to be awarded by a court of equity upon a bill filed to compel the production of such contract, or closure of the amount due and unpaid thereon.

SEC. 9. The several liens herein provided for shall con- Time lion continue for twenty days after such statement or account is filed in the office of the register of deeds, and no longer, unless proceedings are begun to enforce the same, as hereinafter provided. And such liens shall take priority as Priority of llens. follows:

First, As between persons claiming liens under this statute the several liens upon the same property attaching by reason of work, labor or materials, furnished in carrying forward or completing the same building, machinery, structure or improvement shall be deemed simultaneous mortgages;

Second, They shall take priority to all garnishments for the contract debt made prior or subsequent to the commencement of the furnishing of the materials or performance of

case

à dis

tinues.

or

In case of other building, etc.

the labor, without regard to the date of filing the claim for lien;

Third, They shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, subsequent to the commencement of said building, erection, structure improvement;

Fourth, The liens for such labor or materials furnished, including those for additions, repairs and betterments, shall attach to the building, machinery, erection, structure or improvement for which they were furnished or done, in preference to any prior title, claim, lien, incumbrance or mortgage to or upon the land upon which such building, machinery, erection, structure or improvement belongs or is put.

If such materials were furnished or labor performed in the erection or construction of an orginal or independent building, erection or other improvement, commenced since the attaching or execution of such prior title, claim, lien, incumbrance or mortgage, the court may, in its discretion, order and direct such building, erection or improvement to be separately sold under its decree, and the purchaser may remove the same within such reasonable time as the court may fix; but if, in the discretion of the court, it should not be separately sold, the court shall take an account and ascertain the separate values of the land and the erection, building or other improvements, and distribute the proceeds of the sale so as to secure to the prior title, claim, mortgage or other lien, priority upon the land, and to the mechanics' lien priority upon the building, erection or other improvement, if the materials furnished or labor performed be for addition to, repairs of, or better

ments upon the building, erection or other improvement, Court to take ac- the court shall take an account of the value before such count of value,

materials were furnished, or labor performed, and the enhanced value caused by such additions, repairs or betterments, and upon the sale of the premises distribute the proceeds of sale so as to secure to the prior title, mortgage or lien, priority upon the land and improvements to the amount as they existed prior to the commencement of the improvements, and to the lien priority upon the enhanced

value caused by such addition, repairs or betterments. Proceedings to SEC. 10. Proceedings to enforce such lien shall be by enforce llen, etc. bill in chancery, under oath, and notice of lis pendens

filed for record in the office of the register of deeds shall have the effect to continue such lien pending such proceedings. And in such proceedings, the complainant shall make all persons having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien,

etc.

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