Sec. 1015. The title necessary to support a lien. Complete title is not always necessary when the contract for material was made. An equitable title will be sufficient to support the lien.15 Sec. 1016. The lien statement-How made and where filed. Any person claiming a lien as set forth in this chapter, foregoing paragraph, is required to file in the office of the clerk of the district court in the county in which the land is situated, a statement setting forth the amount claimed and the items thereof, as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant and a description of the property subject to the lien, verified by affidavit: Provided, that if any promissory note bearing a lawful rate of interest be taken for any such labor or material, it will not be necessary to file an itemized statement of the labor or material furnished, but, in lieu thereof, it will be sufficient to file a copy of such note, with a sworn statement that said note, or any part thereof, was given for such labor or material used in the construction of such building or improvement; and if the whole of said note be given for such labor or material the lien shall be for the whole of the principal and interest of such note; but if a part of said note only be given for such labor or material then the lien will be for a corresponding amount only, with interest at the rate specified in said note. Said statement must be filed within four months after the date on which material was last furnished or labor last performed under the contract as aforesaid; and if the claim be for the planting of trees, vines, plants v. Hoover, 5 Ralle, 291; Brook v. Lester, 36 Md. 67; Mitchell v. Penfield, 8 Kan. 186. The abandonment of work on a building by the consent or fault of the owner will be deemed a completion of the building for the purpose of filing a lien. Shaw v. Stewart, 43 Kan. 572, 23 Pac. 616. Where the owner and contractor treat the building as completed, it will be deemed completed for the purpose of attaching a lien thereon. Rice v. Brown, 2 Kan. App. 1, 42 Pac. 392. 15 Jarvis v. Sulton, 46 Kan. 166, 26 Pac. 406; Getto v. Friend, 46 Kan. 67, 26 Pac. 473. or hedge, such statement must be filed within four months from such planting. Immediately upon the receipt of such statement the clerk of the district court is required to enter a record of the same in a book kept for that purpose to be called the Mechanics' Lien Docket, which docket must be ruled off in separate columns with headings as follows: "When filed," "Name of Owner," "Name of Claimant, "Amount claimed," "Description of property," and "Remarks," and the clerk must make the proper entry in each column.16 Sec. 1017. Subcontractor's lien-Statement-Time when same is filed-Notice to the owner. Any person who furnishes any such material or performs such labor under a subcontract with the contractor, or as an artisan or day laborer in the employ of such contractor, may obtain a lien upon such lands or improvements, or both, from the same time, and in the same manner, and to the same extent as the original contractor, for the amount due him for such material and labor; and any artizan or day laborer in the employ of and any such person, who furnishes material to such subcontractor, may obtain a lien upon said lands or improvements or both, for the same time, and in the same manner and to the same extent as the subcontractor for the amount due him for such material and labor, by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which ma 18 Snyder, 6,152; Wilson, 4,818; Kansas, 5,118 (1901), identical. As to when a materialman becomes a subcontractor, see Ryndak v. Seawell, 13 Okla. 737, 76 Pac. 170. As to what statements are sufficient to establish lien, see Blanshard V. Schwartz, 7 Okla. 23, 54 Pac. 304; North v. Hegner, 42 Pac. 388; Bethel v. Bethel, 39 Kan. 230, 17 Pac. 813; School v. Howell, 44 Kan. 285, 24 Pac. 365; Martin v. Burns, 54 Kan. 641, 39 Pac. 177; Conroy terial was last furnished or labor last performed under said subcontract, a statement verified by affidavit, setting forth the amount due from the contractor to the claimant and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant and a description of the property upon which the lien is claimed; and by serving notice in writing of the filing of such lien upon the owner of the lands or improvements, or both: Provided, that if with due diligence the owner cannot be found in the county where the land is situated, the claimant after filing an affidavit setting forth such facts, may serve a copy of said statement upon the occupant of the lands, or the occupant of the improvements, as the case may be. Or, if the same be unoccupied, may post said copy in a conspicuous place on said land or any building thereon. Immediately upon the filing of said statement the clerk of the district court is required to enter a record of the same in the docket provided for in Section 6152, Snyder, in the manner therein specified; that the owner of any land affected by such lien will not thereby become liable to any claimant for any greater amount than he contracted to pay to the original contractor. The risk of all payments made to the original contractor will be upon such owner until the expiration of the sixty days herein specified, and no owner will be liable for any action by such contractor until the expiration of the said sixty days, and such owner may pay such subcontractor the amount due him from such contractor, for such labor and material, and the amount so paid be held and deemed a payment of said amount to the original contractor.17 5,119 17 Snyder, 6,153; act approved March 15, 1905; Kansas, (1901), identical. It is not necessary to allege and prove knowledge of the owner. Ferguson v. Brown, 14 Okla. 148, 77 Pac. 184. The time runs from the date of the furnishing of the last item. Board v. Gelino, 9 Kan. App. 555, 58 Pac. 277. For insufficient statement for lien, see Long v. Adams, 71 Kan. 309, 80 Pac. 593; Western v. Hynan, 71 Kan. 43, 80 Pac. 16; Nixon v. Cydon, 56 Kan. 298, 43 Pac. 236. As to the date when the time begins to run within which lien may be filed, see P. T. Walton, etc., 29 Okla. 237, 1,116 Pac. 798. Sec. 1018. Materialman and laborer furnishing material and labor to fraudulent grantee protected, when. An owner of real estate who was induced by fraud to convey the title to another, a contract contemplating the construction of buildings thereon, cannot, in an action brought by him to set aside the conveyance and discharge the property from all liens, defeat the claims of persons who, in good faith, and relying on the apparent title of the fraudulent purchaser, have furnished materials and performed labor in the construction of buildings contemplated, and have complied with the statutory requirements in establishing their liens.18 Sec. 1019. A mechanic's lien is assignable. All claims for liens and rights of action to recover therefor under the statute creating mechanics' liens, are assignable so as to vest in the assignee all the rights and remedies herein given, subject to all defenses thereto that might be made if such assignment had not been made. Where a statement has been filed and recorded as herein provided, such assignment may be made by an entry on the same page of the Mechanics' Lien Docket containing the record of the lien, signed by the claimant or his lawful representative and attested by the clerk, or such assignment may be made by a separate instrument in writing.19 Sec. 1020. Procedure-May be enforced by civil actionAmendment. Any lien provided for by this chapter may be enforced by civil action in the district court of the county in which the land is situated, but such action must be brought within one year from the time of the filing of said lien with the clerk of said court: Provided, that where a promissory note is given, such action may be brought at any time within one year from the maturity of said note. The practice, pleading 18 West v. Badger, 56 Kan. 298, 43 Pac. 239. 19 Snyder, 6,154; Wilson, 4,820; Kansas, 5,120 (1901), identical. and proceedings in said action must conform to the rules prescribed by the code of civil procedure as far as the same may be applicable; and in case of an action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.20 Sec. 1021. Procedure-All lien claimants to be made parties. In such actions all persons whose liens are filed as provided in this chapter, and other incumbrancers, must be made parties, and the issues must be made and a trial had as in other cases. Where such action is brought by a subcontractor, or other person not the original contractor, such original contractor must be made a party defendant, and 20 Snyder, 6,155; Wilson, 4,821; Alberti v. Mooer, 20 Okla. 78, 93 Pac. 543; El Reno v. Jennison, 50 Pac. 144; Blanshard v. Schwartz, 7 Okla. 23, 54 Pac. 304; Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640. In an action to partition real estate where the parties claiming mechanics' liens are made parties defendant, and file an answer and cross-petition showing the commencement of an action which had been dismissed without prejudice, that within a year from such dismissal the present action had been commenced and cross petition filed, held, that by virtue of the provisions of Sec. 23 of the Civil Code, the action of defendants claiming a lien was not barred by the one-year limitation prescribed by the mechanics' lien law [paragraph 4747 (1889)], although n.ore than one year had elapsed since the completion of the building. Spencer, 49 Kan. 569, 31 Hobbs v. Pac. 702; Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22. When an action is regularly brought against the owner of the premises within one year from the time of filing a materialman's lien to foreclose such lien, the contractor may be made a party thereto, upon the application of either party, after the expiration of one year. An action so commenced is not barred by the statute of limitation, because the contractor is not made a party thereto before the expiration of a year from the time of filing the lien statement. Western v. Heiman, 65 Kan. 5, 68 Pac. 1,080. In an action to enforce a mechanic's lien service of summons upon the owner within the period prescribed by statute for the commencement of such action, does not preserve the lien as against other incumbrancers who are not made parties to such an action within the period of limitation. Wood v. Dill, 3 Kan. App. 484, 43 Pac. 822. |