§ 103. Sec. 1. Lien for Labor and Materials. (Who may claim lien.) Every person who shall, in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor, and the owner, part owner or lessee of any interest in real estate, build, alter, improve, repair, erect, ornament or put in, or who shall furnish any labor or materials in or for building, altering, improving, repairing, erecting, ornamenting or putting in any house, building, machinery, wharf, or structure or who shall excavate, or build in whole, or in part, any foundation, cellar or basement for any such house, building, structure or wharf, or shall build or repair any sidewalks or who shall furnish any materials therefor, and every person who shall be subcontractor, laborer, or material man, perform any labor or furnish materials to such original or principal contractor, or any subcontractor, in carrying forward or completing any such contract, shall have a lien therefor. (Property to which lien extends.) Upon such house, building, machinery, wharf, walk or walks, foundation, cellar or basment, and other structures, and its appurtenances, and also upon the entire interest of such owner, part owner or lessee in and to the lot or piece of land, not exceeding one quarter section of land, or if in any incorporated city or village, not exceeding the lot or lots upon or around or in front of, which such improvement is made, to the extent of the right, title and interest of such owner, part owner or lessee at the time work was commenced or materials were begun to be furnished by the contractor under the original contract, or by the subcontractor who furnishes or is furnished with any labor or material in the performance or execution of such subcontract, and also the extent of any subsequently acquired interest of any such owner, part owner or lessee, and in case of the construction of a number of buildings, foundations, cellars, basements, or walks under one contract upon, around or in front of the same lot or contiguous lots for the same owner, part owner or lessee, of any interest in the real estate upon which said buildings are situated or upon, around or in front of which said walk or walks are built or repaired, such lien for such material or labor so furnished, shall attach to all of said buildings, foundations, cellars, basements, walk or walks, together with the land upon, around or in front of, which the same are being constructed, the same as hereinbefore provided in case of a single building, foundation, cellar, basement, walk or improvement. (Notice by subcontractor, laborer or materialman.) Provided, That any person, firm or corporation furnishing materials or performing labor of any kind entering into the construction of any such building, structure, foundation, cellar, basement or walk, shall within thirty days after furnishing the first of such material or performing the first of such labor to any contractor or subcontractor, serve on the owner, part owner or lessee of the premises, or his agent a notice, which notice shall be such as will inform the owner, part owner or lessee of the premises, or his agent, of the nature of the materials furnished, or labor performed, or to be performed, and a description of the premises where furnished, if such owner, part owner or lessee reside in or has a known agent in the county in charge of such structure, improvement, foundations, cellars, basements, walk or walks. Such notice may be in the following form: Το to take notice that the undersigned is furnishing certain labor or materials for building, excavating or altering, improving, repairing, erecting or ornamenting, as the case may be, a certain situated on or around or in front of the following described property Such notice, however, shall be sufficient if served at any time subsequent to said thirty days, but before the original contractor shall 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, firm or corporation furnishing materials, giving the amount, if anything, which is due or to become due on them, or any of them, for work done or materials furnished as required by section four of this act. (Extent of owner's liability.) The owner, part owner or lessee shall not be liable to the subcontractor, materialmen or laborers, for any greater amount than he contracted to pay the original contractor, and shall be entitled to recoup any damages which he may sustain by reason of any failure or omission in the performance of such contract. (Effect of payments made, but not distributed.) But the risk of all payments made to original contractor after he shall have received the notice above mentioned, or before the contractor shall have furnished him with a statement as hereinbefore provided, shall be upon the owner, part owner or lessee until the expiration of sixty days, within which claims for lien may be filed as hereinafter provided, and no payment made to any contractor before the expiration of said sixty days shall defeat any lien of any subcontractor, materialman or laborer, unless such payment has been distributed among the subcontractors, materialmen or laborers, or if distributed in part only, then to the extent of such distributions. The title of the lien law is: "An act to establish, protect and enforce by lien the rights of mechanics and other persons furnishing labor or materials for the building, altering, improving, repairing, erecting or ornamenting of buildings, machinery, wharves and all other structures and the building and repairing [of] sidewalks, and to repeal all acts contravening the provisions of this act." (As amended by Act 17 of 1903). §1, as amended by Act 199 of 1893, Act 143 of 1897, Act 17 of 1903, and Act 121 of 1909, C. L. 1915 (14796), How. 2nd Ed. §13766, C. L. 1897 (10710). The lien reaches the actual interest in the property of the person contracting for the structure only. Wagar v. Briscoe, 38 Mich. 587 (594-596); Scales v. Griffin, 2 Doug. 54; Merrill v. Brant, 175 Mich. 182 (184-185), 141 N. W. 550. The interest at the time of the furnishing and that subsequently acquired is by statute subject to lien. Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (579), 152 N. W. 117. An unrecorded lease fixing the terms of lessee's interest and giving lessor a lien was held not subject to lien for improvements under contract with lessee. Peninsular General Electric Co. v. Norris, 100 Mich. 497, 59 N. W. 151. The interest of a lessee for decorations and fixtures permanently added to the property under his contract was reached. Albert Gall Co. v. Dowagiac Gas Co., 160 Mich. 255, 125 N. W. 283. Material furnished for a building, but not actually used therein do not form the basis for a lien, as the equity of lien claim arises from increasing the value of the property. Smalley v. Gearing, 121 Mich. 191 (202-3), 79 N. W. 1114, 80 N. W. 797; North v. Globe Fence Co., 144 Mich. 557 (558), 108 N. W. 285. Materials sold to dealer in regular course of trade, with out knowledge that they are to be used in any particular building, but which were in fact ordered by dealer under contract with owner and used in the building, do not entitle seller to lien. VanCleve Glass Co. v. Erratt, 110 Mich. 689, 68 N. W. 978. The contract must relate to and be performed upon the land. Stout v. Sawyer, 37 Mich. 313 (315-316); People v. McAllister, 49 Mich. 12, 12 N. W. 891. Liens of subcontractors, laborers and materialmen are not prevented by contract of original contractor for erection which provides the building shall be delivered free from liens. Smalley v. Gearing, 121 Mich. 190 (198), 79 N. W. 1114, 80 N. W. 797. The right to lien was held complete where furnisher of materials had furnished practically all and was ready to supply the remainder when he should receive the dimensions. Frohlich v. Carroll, 127 Mich. 562 (565), 86 N. W. 1034. The contract provided there should be no charge for extras unless agreed to in writing; this held in a case of dispute on whether the things so charged were in fact extras, to preclude inclusion in lien of extras furnished by contractor on verbal demand. Gier v. Daiber, 148 Mich. 190, (194-195), 111 N. W. 773. A subcontractor is estopped to assert lien as to payments made by owner to contractor on subcontractor's request. Fairbairn V. Moody, 116 Mich. 61, 74 N. W. 386, 75 N. W. 469. A contractor cannot retain possession of the building to enforce payment of the contract price after time for performance has expired and he has ceased work, claiming that the building is completed according to contract, but if he attempts to do so may be proceeded against in trespass. Beller v. Stange, 27 Mich. 312. Wife's land not subject to lien for building thereon for her husband where she was not a party to contract and had no notice that materials were being furnished, but was served with the claim of lien and made defendant. Hall V. Erkfitz, 125 Mich. 332 (335), 84 N. W. 310. Where the husband in his own name contracted for the erection of house on his wife's land, the circumstances indicated that he was acting as her agent and the premises were held liable to lien. Frohlich v. Carroll, 127 Mich. 561, (564-565), 86 N. W. 1034. Where a contract price was less than cost to contractor, subcontractor, materialman or laborer entitled to lien for only his prorata share of contract price. Blitz v. Fields, 118 Mich. 85, 76 N. W. 119. Liens do not attach to public buildings, in absence of special provision. Knapp v. Swaney, 56 Mich. 345, 23 N. W. 162; Ford v. State Board of Education, 166 Mich. 658, 132 N. W. 467, C. L. 1915 (14827)-(14830), C. L. 1897 (10743)-(10745). Nor to property of electric railways for_machinery furnished. Detroit Trust Co. v. Detroit, Flint & Saginaw, 159 Mich. 442 (453), 124 Ñ. W. 45. Lien held not prevented by a contingent liability of contractor to owner. Vaughan v. Ford, 162 Mich. 37 (43, 44), 127 N. W. 280. It does not necessarily follow that because a city block is divided into lots, a lien may not attach to more of the lots than covered by the structure erected. But where platted lots other than those upon which a brick plant was located were so situated that deposits of material for manufacture into bricks might be taken therefrom, no lien attached by mere reason of that fact, to the |