Metzger v. McCann

Mr. Justice Horton delivered the opinion of the court. The only question to be now determined upon this appeal is whether or not the court below erred in sustaining appellees’ claim for a mechanic’s lien. The lien of a mechanic is purely statutory If a claimant for such a lien fails to comply substantially with the provisions of the statute, he can not secure a lien. The notice filed with the clerk of the Circuit Court upon which the claim for such a lien is based in the case at bar, is given in full in the foregoing statement. It is claimed by appellees and was decreed by the court below, that appellees are entitled to a several lien for one third of the total amount named in said notice, upon each of the lots one, two and six therein described. The claim of appellees for a lien is under the mechanics’ lien statute as it was in 1893; section 4 of that statute provides : “ Every creditor or contractor who wishes to avail himself of the provisions of this act shall file with the clerk of the Circuit Court of the county in which the building, erection or other improvement to be charged with the lien is situated, a just and true statement or account ,or demand due him, after allowing all credits, setting forth the times when such material was furnished or labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit,” etc. And section 28 of the same act further provides : “ Ho creditor shall be allowed to enforce a lien created under the provisions of this act as against or to the prejudice of any other creditor or incumbrancer or purchaser, unless a claim for a lien shall have been filed with the clerk of the Circuit Court, as provided in section 4 of this act, within four months after the last payment shall have become due and payable. Suit shall be commenced within two years after filing such claim with the clerk of the Circuit Court, or the lien shall be vacated.” Said lots one and two are contiguous or adjoining lots, but said lot six is not adjoining or contiguous to either said lot one or said lot two. Between said lot two and said lot six are three other lots numbered three, four and five, having a frontage of about seventy-five feet. All of said lots front on Fiftieth street. Said notice states that exhibit “A” attached thereto “is a true and just statement of the account due said McCann & Sullivan from James Button for labor done and material furnished said James Button at the times in said statement mentioned,” etc. Also that the total amount thus due is $1,017.10. There is nothing whatever in said statement or the exhibit thereto attached to indicate, or from which it can be determined, what part or proportion of such labor or material was for improvements upon either one of said lots. From aught that there appears, all of such labor and material may have been for the building upon said lot six or upon said iots one and two, or upon one of them only. To say that one continuous building was erected covering only said lots one, two and six, is to, state a physical impossibility. Those lots are some seventy-five feet apart. The court below ordered and decreed that appellees are entitled, under said notice, to a lien upon said lots one and two for two-thirds the amount claimed to be due to them under their entire contract for plumbing, etc., in building to be erected upon the three lots, one, two and six. The case of Buckley v. Commercial Nat. Bk., 171 Ill. 284, is in principle and in many of the details like the case at bar. It is there held in substance that as against the interest of third parties, and when by the statement filed with the clerk of the Circuit Court, a single lien is claimed upon distinct lots of land, such claim can not be apportioned so as to preserve a separate lien upon each lot where there is nothing in the statement to indicate the amount claimed against each lot or the times when the labor and material were furnished for each. For that reason the notice in question is not sufficient to sustain the decree entered by the court below as against the appellant Metzger. Other objections to said statement are made but it is not deemed necessary to consider them in detail as the point passed upon is fatal to the claim of appellees for a mechanic’s lien. The appellant Baker acquired title to the premises pendente lite, by warranty deed |rom Mary E. Button, and as owner of the equity of redemption thus acquired, answered the bill of Metzger filed to foreclose said trust deed. In this court he filed a nominal brief, adopting, by consent of Metzger, the brief of the latter in opposition to appellees. Our discussion and decision upon the lien notice is as applicable to Baker as to Metzger, and the motion to dismiss Baker’s appeal is denied. The decree of the Superior Court is reversed and the cause remanded with directions to dismiss the petition of appellees for a mechanic’s lien, and to decree the lien of appellant Metzger under said trust deed to be a first and valid lien, arid to direct a sale of said lots one and two free from any claim or lien of appellees. Reversed and remanded with directions.