§ 66. Duty of Register of Deeds Upon Filing Lien.

The register of deeds should 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, such book to be properly indexed, and to contain such date of 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."

57

§ 67. Fees.

The register of deeds shall receive the sum of seventyfive cents as his fees for the filing of the statement or account, and all subsequent papers filed with him relating to such lien."

58

§ 68. Right of Action on Claim After Filing Lien.

By claiming lien the creditor does not waive or relinquish his right to maintain an action upon the debt at law in like manner as if he had no lien for security, and the institution of proceedings at law does not operate to waive the lien. The applicable statutory provision is: Except as

59

herein otherwise expressly provided, nothing in this act contained shall be construed to prevent any creditor in any such contract from maintaining an action thereon at common law in like manner as if he had no lien for the security of his debt. The institution of proceedings at law to recover the debt does not operate to waive the lien, though it is best that no such proceedings should be pending at the time when the bill to foreclose the lien is filed or is pending.60

59. §22 of Act 179 of 1891; C. L. 1915 (14817), How. 2nd Ed. $13787, C. L. 1897 (10731). Notwithstanding claims of lien have been filed, the contractor's assignee may bring action upon the contract where all liens filed have been assigned to him and the time for filing other liens has expired. Cady v. Fairplain Liter

ary Ass'n, 135 Mich. 295, 97 N. W. 680. See: Walker v. Syms, 118 Mich. 183 (188), 76 N. W. 320; Bollin v. Hooper, 127 Mich. 287, 86 N. W. 795; Morton v. Eaton, 141 Mich. 444, 104 N. W. 726.

60. See Schmid v. Benzie Circuit Judge, 138 Mich. 452, 101 N. W. 620; 1 Cyc. 752, 754.

CHAPTER IX.

RIGHTS AND DUTIES AFTER PERFECTION OF LIEN.*

§ 69. Security, Effect of Lien as.

70.

71.

Extent of the Lien When Claimed.

Duties of Lien Claimant After Lien Perfected, to Continue it in Force.

§ 69. Security, Effect of Lien as.

By perfection of the lien the claimant acquires security for his debt in the nature of a mortgage lien1 which, by express provision of the statute, is limited in duration to one year from the date of filing the claim of lien in the office of the register of deeds, and no longer unless proceedings to enforce the lien have been commenced within the year. By statute it is provided that the filing of claim of lien shall have the same effect as to notice as against subsequent purchasers or incumbrancers as the recording of a mortgage, though to continue its force as to third persons after proceedings to foreclose are instituted, a his pendens must be filed.*

2

3

*In general as to the subjects comprehended in Chapter IX, see Title "Mechanics' Liens," 34 Cent. Dig. $$280-308 and 13 Dec. Dig. §§159-179.

1. Willard v. Magoon, 30 Mich. 273 (276). See first paragraph or subdivision of 89 of the act; C. L. 1915 (14804), How. 2nd Ed. §13774, C. L. 1897 (10718). Hammond v. Wells, 45 Mich. 11 (13), 7 N. W. 218; Kirkwood v. Hoxie, 95 Mich. 62 (65), 54 N. W. 720.

2. §9 of Act 179 of 1891 as amended by Act 199 of 1893 and act 143 of 1897, C. L. 1915 (14804), How. 2nd Ed. §13774, C. L. 1897 (10718).

3. §5 of Act 179 of 1891, C. L. 1915 (14800), How. 2nd Ed. §13770, C. L. 1897 (10714); Gibbs v. Hanchette, 90 Mich. 657 (659), 51 N. W. 691.

4. §10 of Act 179 of 1891, C. L. 1915 (14805), How. 2nd Ed. $13775, C. L. 1897 (10719).

§ 70. Extent of the Lien When Claimed.

The lien is of course limited by the claim and in the absence of exceptional circumstances to the interest of the person contracting for the construction or improvement, in the premises. The statutory extent of the lien is fixed as being that the liens for such labor or materials furnished, including those for additions, repairs, and betterments, shall attach to the building, machinery, erections, structure, or improvement for which they are furnished or done, and to the lands on which constructed or installed, subject to any prior recorded title, claim, lien, incumbrance, or mortgage to or upon the land upon which such building, or buildings, machinery, erection, structure or improvement belongs or is put. Where the person contracting for the construction or improvement had no title to the land on which such construction or improvement was to be made, the lien for work or materials for a new structure would extend merely to the structure. Once the lien has attached the general rule

5. 27 Cyc. 223.

8

6. Wagar v. Briscoe, 38 Mich. 587 (594-596); Scales v. Griffin, 2 Doug. 54 (64-65); Merrill v. Brant, 175 Mich. 182 (184-185), 141 N. W. 550; Peninsular Electric Co. v. Norris, 100 Mich. 496 (504-505), 59 N. W. 151.

7. Fourth paragraph or subdivision of 89 of Act 179 of 1891, as amended by Act 199 of 1893 and Act 143 of 1897; C. L. 1915 (14804), How. 2nd Ed. §13774, C. L. 1897 (10718). Previous to the amendment of 1897 this section permitted a new building to be sold separately from the land where the land was not subject to lien through being a homestead, the contract not having been signed by the wife. Jossman v. Rice, 121 Mich. 270 (277-278), 80 N. W. 25; the amendment to paragraph 4 of the section in 1897 modified the ruling in Peninsular

Electric Co. v. Norris, 100 Mich. 496 (502), 59 N. W. 151 (decided in 1894).

8. §3 of Act 179 of 1891, C. L. 1915 (14798), How. 2nd Ed. $13768, C.i. L. 1897 (10712). Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (579), 132 N. W. 117; Fuller v. Detroit Loan & Building Ass'n, 119 Mich. 71 (7374), 77 N. W. 642. Where a new house was built upon land to which the contractee owner had no legal title but which constituted a homestead and was hence exempt from lien because the owner's wife did not sign the contract, the lien was held to have attached to the building separately and to be enforceable by sale and removal of the house. Holliday v. Mathewson, 146 Mich. 336 (338340), 109 N. W. 669. Where the land is imperfectly described, but the building is accurately de

is that the subsequent removal or destruction of the building by fire or other casualty does not terminate the lien against the land."

§ 71. Duties of Lien Claimant After Lien Perfected, to Continue it in Force.

The lien claimant must, within five days after demand by the owner, part owner or lessee or his agent, furnish to the party making the demand a written statement of the amount of work and materials furnished to the date of his statement and then unpaid, as nearly as can then be ascertained, under penalty of a forfeiture of his lien.10 He must begin suit in chancery to enforce or foreclose his lien within one year after the statement of account is filed in the office

scribed, the lien will perhaps stand against the building alone. Hannah & Lay Co. v. Mosser, 105 Mich. 18 (31), 62 N. W. 1120. This decision was reached, however, by virtue of the fourth paragraph of §9, which was later amended (in 1897) to its present form.

9. Ordinarily a mechanics' lien is not lost where the improvement giving rise to it is destroyed or removed, but in the absence of special conditions the lien still continues as to the real estate. Paddock v. Stout, 121 Ill. 571 (581), 13 N. E. 182; Smith v. Newbaur, 144 Ind. 95 (101-102, 104-105), 42 N. E. 40, 1094; Clark v. Parker, 68 Iowa 509, 12 N. W. 553; Freeman v. Carson, 27 Minn. 516; Stuart v. Broome, 59 Texas 466; Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 111 Fed. 81 (96); 27 Cyc. 286287; Wilkinson on Mechanics' Liens, pp. 32-33; Rockel on Mechanics' Liens, §186; Jones on Liens, 3rd Ed. §§1538-1541, 1518; Boisot on Mechanics' Liens, §177; Houck Law of Liens, §§203-205; Kneeland on Mechanics' Liens,

2nd Ed. §§155-160; Overton on Liens, $549; Notes, 2 Am. & Eng. Ann. Cas. 812-813; 26 Id. 943-944; 34 Id. 681-682; 41 L. R. A. (N. S.) 296-302. Where a lien has attached to a building it has been held that such lien will not be defeated by the removal of the building to another lot. Bishop v. Honey, 34 Texas 245. Lien has also been held to attach to the proceeds of a sale of machinery originally subject to lien, in Paddock v. Stout, 121 Ill. 571 (581), 13 N. E. 182; but not to the proceeds of an insurance policy in favor of the owner or prior mortgagee. Rackley v. Scott, 61 N. H. 140; Elgin Lumber Co. v. Langman, 23 Ill. App. 250; Cameron v. Fay, 55 Texas 58 (62).

10. §8 of Act 179 of 1891, C. L. 1915 (14803), How. 2nd Ed. $13773, C. L. 1897 (10717). This requirement is after demand mandatory, and loss of lien results from non-compliance therewith although the owner is not prejudiced. Frohlich v. Beecher, 139 Mich. 278 (279-280), 102 N. W. 736; though where the demand was not made until after the bill