Roach v. Chapin

Walker, J. This was a petition, filed to enforce a lien for materials furnished for the erection of a building. One of the defendants-filed a demurrer, which was overruled and no answer filed. The other defendant came into court and confessed the truth of the bill. The court thereupon heard evidence, and rendered a decree, finding the existence of the lien as alleged, and that the sum due was $96.65, which was ordered to be paid in ninety days, and in case of default, the property described in the petition was ordered to be sold, after giving four weeks’ notice of the time and place of sale. - It is insisted that the court erred in overruling the demurrer, because the petition alleges, that materials were furnished to two defendants, with which to erect a building on the land of one of them. In the case of Van Court v. Bushnell, 21 Ill. 624, this question was presented to, discussed and-determined by this court. In that case it was held, that the fact that only one of the defendants owned the land, in no wise defeated the right to enforce the lien. That case is decisive of this question. It is also urged, that the court erred in rendering a decree against Roach upon overruling his demurrer, without first ruling him to answer the petition. In the case of Miller v. Davidson, 3 Gilm. 518, it was said, that the correct practice in chancery causes, upon overruling a demurrer to the bill, is not to render a decree; but the order should be, that the defendant answer the bill, and if he neglect to do so, the bill may be taken as confessed. But the court, in that case, seems to have retrained from reversing upon that ground. It is further said in that case, that the chancellor may, in his discretion, render a decree at once upon a bill taken as confessed, on the overruling of the demurrer to the bill. The question whether the defendant in error should have been ruled to answer, being one of discretion, it will not be reviewed in this court. We now come to the question mainly relied upon for a reversal. It is, that the petition contains no allegation, that there was any time specified, within which the materials were to be furnished. This, under the act of 1845, would have been a fatal objection on demurrer. But the General Assembly, by the act of the 18th of February, 1861, (Sess. Laws, 179,) provides that the former act shall be held to include implied as well as express contracts, under which labor is performed, or materials furnished, where no price is agreed upon, or no time is expressly fixed for payment, or for the furnishing of such labor or materials, provided the work is done or the materials furnished within one year from the commencement of the furnishing such materials. These materials are alleged to have been furnished after the passage of this act, and the case falls fully within its provisions. This, therefore, presented no ground- tor sustaining the demurrer. We are also asked to reverse the decree, because it ordered that all three of the lots described in the petition should be sold, to produce the money. This objection is not well taken, as the decree does not make such an order. It orders, that all or “ so much of the lots as may be necessary to satisfy said debt and costs ” should be sold. ' Under this decree the master would have no power to sell any more, if it was susceptible of division, than would be sufficient to satisfy the decree. The decree of the court below is affirmed. Decree affirmed.