CHAPTER XVII.

THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD BY FORECLOSURE OF

MECHANIC'S LIEN.

SECTION

1038. Procedure in the foreclosure
of mechanics' lien-The form
for petition foreclosing sub-
contractor's lien.
1039. Procedure by which a me-

chanic's lien is foreclosed-
The petition for foreclosure
of lien setting forth a single
cause of action upon a ma-
terialman's lien.

1040. Form for answer admitting
the allegations of the peti-
tion and consenting to the
prayer thereof.

1041. Form for notice for service by publication for nonresident defendant.

1042. Form for the affidavit for service by publication.

1043. Form for service by publica

tion.

SECTION

1044. Form for proof of publication. 1045. Form for the decree of court foreclosing the lien.

1046. Form for execution in such

case.

1047. Form for appraisement of real estate.

1048. Form for publication of sheriff's sale of real estate. 1049. Form for proof of publication. 1050. Form for sheriff's return of his proceedings under the writ, the same being at tached to the back of the execution above.

1051. Form for order of court approving sheriff's sale.

1052. Form for sheriff's deed to purchaser.

Sec. 1009. The origin and nature of the law.

The law by which the mechanic or laborer can claim a lien on real estate for the value of labor or material for the improvement thereof, did not exist at common law. It is purely a creature of the statute.1 It is founded in justice and arises from the principle that the owner of real estate, having secured the labor and material improving his property, should allow a lien to attach thereto for the payment thereof. Its object was, and is, to obviate the injustice and wrong practiced on laborers and materialmen by contractors in defrauding them of their just demands after they have performed labor or furnished material. It interferes with the honest intention of no man, and merely secures rights that could have been made available by activity and vigilance in the prosecution of remedies that existed before the law. The lien is not obtained by legal proceedings, but is a lien voluntarily conferred by the owner when he hires a mechanic or orders material."

1 McCune v. Snyder, 8 O. D. 316. 2 Railway v. Cronin, 1 W. L. B. 315.

(Ohio),

3 In re Beck, 11 O. F. D. 449.

Sec. 1010. The right to assert the lien may be waived, how.

The right to place a mechanic's lien on real estate of another for labor and material furnished for the improvement thereof, like any other simple right, may be waived. It has been held that it may be waived by acts and agreement, although he has made no express promise, he will waive the right, by agreement, express or complied, that the lien will not be asserted; and by accepting a note in payment of a mechanic's claim for material furnished and work done." by statute the taking of a note does not waive the lien.*

4

5

But

Sec. 1011. Laborer and materialman's lien on real estate— Homestead-The statute.

Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor or furnish material for the erection, alteration or repair of any building, improvement, or structure thereon; or who shall furnish material or perform labor in putting up any fixtures, machinery in or attachment to, any such building, structure or improvements; or who shall plant any trees, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor or material for building, altering or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances, but if a homestead the lien shall be good on not to exceed five acres in a square form on which the building material, fixtures or machinery are located, in the manner herein provided, for the amount due him for such labor, materials, fixtures or machinery. If the title to the land is not in the person with whom any such contract was made, but is leased and unimproved, the lien shall be allowed on the buildings and improvements on such land separately from the real estate. Such liens shall be

4 West v. Klotz, 37 0. S. 420. 5 Iron v. Murray, 38 O. S. 323. 6 Brooks v. Finney, 39 O. S. 57; but see Standard v. Sowden, 55

O. S. 332; Bernsdorf v. Hardway, 7 C. C. 378.

*

Snyder, 6,152; Wilson, 4,818.

preferred to all other liens or incumbrances which may attach to or upon such land, buildings or improvements or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, the planting of such trees, vines, plants or hedges, the building of such fence, footwalk or sidewalk, or the making of any such repairs or improvements."

One who performs labor in drilling an oil or gas well on lands in which the owner of the well has no interest, beyond that acquired by the ordinary oil and gas lease, authorizing an entry upon the lands to explore for oil and gas, cannot obtain a mechanic's lien for such labor which will attach to the lease, or to personal property belonging to the lessee and left on the land. But the statute now authorizes such lien. And one, who, under a contract with the owner of land, furnishes a windmill and other material, and erects the same thereon, is entitled to a lien on said land for said improvement, by complying with the provisions of the me

chanic's lien law."

7 Snyder,

8

6,151; act approved March 13, 1905; Kansas, 5,117 (1901), identical. The homestead mentioned in the statute must Le actually occupied. An intention to do so in the future will not be sufficient. Ball v. Houston, 11 Okla. 233, 66 Pac. 359. The husband of a wife who owns real estate, buying the material, will give the right to charge the real estate with the lien. Limerick v. Ketcham, 17 Okla. 532, 87 Pac. 605. It was held under Sec. 4,402 (Mansfield's Digest, Arkansas), providing that materialmen shall have a lien on the building and lands of the owner on which it is situated, that a lien will lie and may be enforced on a building, and the interest of the owner thereof in the lands, in the

Choctaw nation, for material used in its construction, though the fee is in the land and cannot be sold. Arnold v. Campbell, 64 S. W. 532, 3 Ind. Ter. 550. Under the provisions of Sec. 630, Code of Civil Procedure, in relation to mechanics' liens, where there are prior liens on the land, the mechanics and materialmen are entitled to priority on a new structure erected entirely by them and from their material independent of the land itself. McCrie v. Hecker, 51 Pac. Rep. 966, 7 Kan. App. 39.

8 Eastern v. McEvoy, 75 Kan. 515, 89 Pac. 1,048; Philips v. Springfield, 76 Kan. 783, 92 Pac. 1,119.

9 Phelps v. Baker, 30 Pac. 477.

The erection or construction of a lightning rod or rods on any building will not be considered such an improvement, fixture or attachment, as to come under the provisions of the act providing for the creation of mechanics' liens.10

Sec. 1012. The lien attaches to leasehold interests, when. The term "owner," as used in the statute, has been held to extend to the interest anyone may have in a leasehold interest subject to the paramount right of the holder of the fee. But this subject as to oil and gas well improvements, is now regulated by statute.12

11

Sec. 1013. A contract with husband for material may bind the real estate of wife, when.

A husband, buying material and using the same for a structure on lands, the title to which is in the wife, will give a lien on the lands for the payment of such material.13

Sec. 1014. The time when lien attaches.

In controversies between one asserting a lien for material or labor furnished, and other lienholders as to priority of date when the lien attaches to real estate, is the time the work was begun on the foundation, notwithstanding the foundation was made by the owner, or under his direction, and not under a contract.14

10 Snyder, 6,162; Wilson, 4,828. 11 Block v. Pearson, 19 Okla. 422, 91 Pac. 714; Jarrell v. Block, 19 Okla. 467, 92 Pac. 167; Seitz v. U. P., etc., 16 Kan. 133; Hathaway v. Davis, 32 Kan. 693, 5 Pac. 29; Chicago v. Osborne, 40 Kan. 168, 19 Pac. 656; Meyer v. Brown, 46 Kan. 543, 26 Pac. 1,019; Chicago v. Fretz, 51 Kan. 134, 32 Pac. 908; Mulvane v. Chicago, 56 Kan. 615, 44 Pac. 613; Crutcher v. Block, 19 Okla. 246, 91 Pac. 895.

12 Snyder, 6,670; act approved March 15, 1905.

13 Limerick v. Ketcham, 14 Okla. 538, 87 Pac. 605; Bethel v. Chicago, 39 Kan. 230, 17 Pac. 813. But to obtain a lien on the homestead both must contract for the material or labor. Rowley v. Varnum, 15 Okla. 612, 84 Pac. 487.

14 National v. Hutchinson, 6 Kan. App. 673, 50 Pac. 100; Mortgage v. Weyerhaeuser, 29 Pac. 153; Ins. v. Ronde, 26 N. J. Eq. 389; Penrock