Brown v. Harper

By the Court, Up^on, J.: This is an appeal from a judgment or decree foreclosing mechanics’ liens. The point of objection made by the appellant is that the complaint does not state facts sufficient to constitute a cause of action or suit, in that the plaintiff sues as assignee, and that liens for labor and material under the statute (Mis. Laws, ch. 32) are not assignable. Notices of these liens were filed by parties performing the work and furnishing the materials, and they were assigned to the plaintiff after the liens were perfected. The authorities cited by the appellant sustain the' position that under statutes similar to ours the lien cannot be perfected by an assignee,—and that seems to be fairly inferable from 1 and 2 of our statute,—but I think none of these au [91] tliorities support the position that the perfected lien cannot be assigned. The appellant claims that such assignment is inconsistent with the requirements of g 10 of the statute, and that the owners of the building have a right that satisfaction-be entered by the original lien-holder. The language is, “Whenever any person having a lien by virtue of the provisions of this title shall have received” payment, he shall “enter satisfaction of his demands,” etc. I do not think there is anything in this section conflicting with the idea of the assign-ability of the perfected lien. The cause of action for the work and material, aside from the lien, was assignable and might have been reached by garnishee process. If this demand had been levied upon by a creditor before assignment but after the lien was perfected, I cannot think such an indebtedness for work and material, when transferred by judicial sale, or enforced by decree for the benefit of the creditor, would be treated as divested of the character of a lien. I think there is nothing in the statute that necessarily leads to the conclusion that a perfected lien is not assignable. The authorities cited by the appellant treat the right to assert and perfect the lien as a personal privilege not transferable. So our statute provides “that any person who shall” * * * “perform labor,” etc., shall have a lien upon filing the notice, etc.; and" “anjperson wishing to avail himself of the provisions of this title,” * * * “shall file,” etc. I think when he has availed himself of these provisions and his rights have become settled and vested, there is no longer an occasion for exercising his personal option, and his rights are no longer in the nature of a privilege that must be exercised or enjoyed by him personally in order to be valid. The record, as presented by the transcript, is somewhat incomplete in not showing the time of filing some of the motions passed upon by the Circuit Court, and it is therefore difficult to determine whether the defendant was in default or whether he was entitled to a hearing on the demurrer, or to say whether this should be deemed a judg [92] ment for want of answer, and consequently not appealable. But, as upon the merits presented by the demurrer, we should arrive at the same conclusion that was reached in the Circuit Court, these questions become immaterial for the purposes of this cause. The decision of the Circuit Court should be affirmed.