Major v. Collins

Wilson, J. We are constrained to reverse the decree of the court below on the ground that it provides for a sale of the premises in sólido, without making an apportionment of the burden to be borne by each house and lot, and ordering a sale of each separately. Section 22 of the Mechanic’s Lien Law provides: “If any part of the premises can be separated from the residue and sold without damage to the whole, and if the value thereof is sufficient to satisfy all the claims proved in the cause, the court may order a sale of that part.” The petitioner avers that Collins agreed to furnish the materials and construct for Major five houses, to be erected on each of five different lots, each of said houses having a separate roof, etc., for the agreed sum of $2,950. There was evidence tending to show, and the decree finds, that the value of each lot was $250 and the value of each house, $800. It also appears that there were existing incumbrances on the land, and that Major had conveyed his equity of redemption in the property to one. The case falls directly within Culver v. Elwell, 73 Ill. 541. There as here the claim was for labor and materials furnished in the erection of five houses on five different lots in Culver’s addition to Evanston, and the decree was for the sale of the property in gross. The court said: “ Another serious error assigned is that the decree establishes liens upon all these buildings, five in number on separate lots, as upon one building. If these five buildings were one block, covered by the same roof, such decree would be proper. We understand these buildings to be distinct and separated from each other. This being so, the rule in Steigleman v. McBride, 17 Ill. 300, applies, where it is said, if the work done or materials furnished are upon distinct premises, the lien must be against each of the several premises according to the value of the work and materials on each.” In the present case, the decree finds the aggregate value of the houses to have been $4,000, and for aught that appeal’s enough might have been realized to satisfy petitioner’s claim by a sale of less than the whole of the lots. Various other points are made by plaintiffs in error, all of which we consider as without merit. It sufficiently appears from the proof that Collins completed his contract in substantial accordance with its terms, and that when only $100 had been paid on the contract, Collins, by his written indorsement thereon, ordered the money due and to become due on the contract to be paid to Hartwell. By this indorsement Hartwell became .the equitable assignee and owner of the avails of the lien. That Major was fully aware of Hart-well’s equitable rights at the time of his alleged settlement with Collins, a careful examination of the evidence leaves no room for a reasonable doubt, if, indeed, such settlement was not wholly collusive and fictitious. When, therefore, the defendant moved for the dismissal of the suit upon Collins’ written stipulation, the court properly denied the motion.' Collins, by his assignment of the avails of the lien to Hart-well, had become but a nominal party, and Hartwell, having by his answer and cross-bill brought his claim to the notice of the court, was entitled to have them protected. The question as to whether the lien of a mechanic or material man under our statute is assignable, so as to institute or carry on proceedings in the name of the assignee for its enforcement, is not involved. It may be fully conceded that such lien is not assignable without in the least affecting the right of the usee or person beneficially interested in the proceeding, to have a suit, when once commenced, carried on for his benefit, upon such terms and conditions for the protection of the nominal party against damages and costs, as the court in the proper exercise of its discretion may prescribe. For the reason hereinabove first expressed, the decree of the court below is reversed, and the cause remanded for further proceeding in conformity with this opinion. Beversed and remanded.