creditor may maintain an action at common law in like manner as if he had no lien for the security of his debt.1

§ 48. Contingent Liability of Contractor to Owner as Preventing Lien.

A lien of a subcontractor was held not prevented by a contingent liability of the contractor to the owner for defects of construction and damages where it appeared that the contract was fully performed.1o

§ 49. Ordering or Refusing Payment.

A lien claimant cannot assert a lien as to payments made by the owner to the contractor on the claimant's request, nor as to payments tendered by the owner and refused.18

17

15. §22 of Act 179 of 1891; C. L. 1915 (14817), How. 2nd Ed. §13787, C. L. 1897 (10731). See §73. And it is not necessary that the liens be discharged before commencement of the suit at law, an adequate remedy being afforded by section 23 for refusal to so discharge them, after the debts secured by such liens have been fully paid. Cady v. Fairplain Literary Ass'n, 135 Mich. 295 (297), 97 N. W. 680; Baumhoff v. St. Louis, etc. Ry., 171 Mo. 120, (132), 71 S. W. 156; 27 Cyc. 267, 320-323. Taking judgment under void law for enforcement

of liens held not to relinquish lien. Kirkwood V. Hoxie, 95 Mich. 62 (66), 54 N. W. 720. But in a number of jurisdictions it is held that relying upon the general credit of the owner or contractor rather than upon the property may amount to a waiver of the right to lien. 27 Cyc. 49.

16. Vaughan v. Ford, 162 Mich. 37 (45-47), 127 N. W. 280.

17. Fairbairn V. Moody, 116 Mich. 61 (62-63), 74 N. Ŵ. 386, 75 N. W. 469.

18. Blakeley v. Moshier, 94 Mich. 299 (303), 54 N. W. 54; Moynahan v. Moore, 9 Mich. 9.

CHAPTER VIII.

CLAIMING AND PERFECTION OF LIEN; PROCEDURE TO ACQUIRE LIENS.*

§ 50. When the Right to Lien Exists.

52. Statement or Claim of Lien, Under Section 5 of Lien Law. 53. Prerequisites to Claim of Lien by Contractor.

54. Time Within Which Claim of Lien to be Filed.

55. Surplusage and Errors in General.

56. Statement of Time of Furnishing Materials and to Whom Furnished, in Claim of Lien.

57. Filing of Claim of Lien.

58. Description of Property.

59. Name of Owner, Part Owner or Lessee.

60. Name of Claimant.

61. Amount Claimed.

62.

Verification of Claim of Lien.

63. Service of Copy of Statement or Claim of Lien,

64. Proof of Service.

65. Proof of Service of Claim or Statement of Account for Lien Under Section 6 of Lien Law.

66. Duty of Register of Deeds upon Filing Lien.

67. Fees.

68. Right of Action on Claim After Filing Lien.

850. When the Right to Lien Exists.

The right to protection by lien accrues at least as soon as work is begun upon, or materials are delivered to, the structure and from that time throughout the furnishing or construction, a right exists on the part of the contractor

*In general as to the subjects comprehended in Chapter VIII, see Title "Mechanics' Liens," 34

Cent. Dig. $$160-279 and 13 Dec.
Dig. §§116-179.

and every subcontractor, laborer, or materialman to look to the property for their protection and as furnishing priority in and security for the amounts owing to them.1 The lien, however, should not be claimed or filed and cannot be perfected until the last of the materials shall have been furnished or the last of the labor performed by the person claiming the lien.2

§ 51.

Statutory Requirement.

The statute fixing the period within which liens may be filed, providing what shall be contained therein and outlining the substantial requirements, provides that:

Every person, or his agent or attorney, whether contractor, subcontractor, materialman or laborer, who wishes 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

1. The right to lien is held com plete where the 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. 561 (565), 86 N. W. 1034. Three judges concurred in the statement that the right to a lien accrued upon delivery of material on the premises under the contract as a general rule, or at any rate at the time work was commenced upon the building. Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (584), 132 N. W. 117. See: Kay v. Towsley, 113 Mich. 281, 71 N. W. 490; KerrMurray Manufacturing Co. V. Kalamazoo Heat, Light & Power Co., 124 Mich. 111 (114), 82 N. W. 801; also 27 Cyc. 215, 218 and

note.

2. §5 of Act 179 of 1891; C. L. 1915 (14800), How. 2nd Ed. §13770, C. L. 1897 (10714); 27 Cyc. 150-152, See $54.

3. §5 of Act 179 of 1891; C. L. 1915 (14800), How. 2nd Ed. $13770, C. L. 1897 (10714). The claim of lien and its requisites; Jones on Liens, 3rd Ed. §§1389-1456; Rockel on Mechanics' Liens, 8871-124; Boisot on Mechanics' Liens, §§350-373, 374-446, 450, 461; Phillips on Mechanics' Liens, 3rd Ed. §§337-390; Kneeland on Mechanics' Liens, 2nd Ed. §§182-195. Description of the materials or labor in claim of lien. Rockel on Mechanics' Liens, S$108-109; Boisot on Mechanics' Liens, 395-399.

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:3a

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 C D, 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

19_;

and the last of such labor was performed (or such materials furnished, or both), on the day of, 19—; and there is justly and truly due deponent therefor from the said C D, over and above all legal set-offs, the sum of dollars, for which amount deponent claims a lien on said land (or buildings) of which is the owner (or part

owner, or lessee as the case may be), which premises are described as follows

A statement or claim of lien should be sufficient in and

3a. See Form Nos. 3 and 4, Part Three.

of itself, without resort to extrinsic proof or other documents to supplement deficiencies in it. That the exact form of statement set forth in the statute was not followed was held not fatal where the claim answered substantial requirements; but entering the name of a wrong party as contractor in the written statement of lien has been held fatal." While it is better to claim separate liens for each structure and description a single lien for several structures upon adjacent lots would probably be held valid particularly if the work was all embraced in a single contract." Honest and unintentional errors in matters not jurisdictional in the statements required to be set up in the claim of lien may generally be said not to defeat the lien. A claim of lien may not be amended or reformed after the time has expired in which it was required to be filed, particularly where the rights of third parties have intervened or are affected.

§ 52. Statement or Claim of Lien, Under Section 5 of Lien Law.

of being duly sworn, says that he a nished certain b in and forc a certain d

4. Armstrong v. Chisolm, 91 N. Y. Supp. 693, cited in Godfrey Lumber Co. v. Kline, 167 Mich. 629 (633), 133 N. W. 528; John F. Noud Co. v. Stedman, 193 Mich. 459, 160 N. W. 547.

5. Kleinert v. Knoop, 147 Mich. 387 (389-390), 110 Ñ. W. 941; 27 Cyc. 150-154.

6. Lacy v. Piatt Power & Heat Co., 157 Mich. 544, 122 N. W. 112. 7. 27 Cyc. 126-131, 192-193. See §9 and notes.

8. 27 Cyc. 200-210. See §61. 9. 27 Cyc. 206-207, 208.

a. If the Statement is made by

fur

situ

an agent or attorney, or by one member of a firm, state such fact in this space, inserting the name of claimant just before the words "furnished certain."

b. In this space insert "labor," or "materials," or both, as the case may be. If materials, describe the character of materials, etc.

c. In this space insert "building," or "altering," "improving," "repairing," "erecting," "ornamenting,” or “putting in" or any two or more of these words, as the case may be.

d. In this space insert descrip