Vanderpoel v. Knight

Mr. Justice Waterman delivered the opinion of the court. The testimony clearly shows that appellants had, in consideration of money and notes received by them, released their lien, and that the decree entered in their favor was properly set aside. Whether the Olivet Baptist Church is indebted to appellants is a question not presented to this court. It by no means follows that if the church is indebted, as appellants claim, they are entitled to a mechanic’s lien upon its property. The lien claimed would affect not only the church, but other parties against whom appellants have no claim. A court of chancery will not hesitate to set aside a decree improperly obtained and to which a party has no right, merely because the party against whose property the decree runs is indebted to the party in whose favor it is. The cross-bill of Higinbotham was dismissed because the building contract entered into by him provided that he should be paid by notes, some of which ran for years beyond the time stipulated for the completion of the work. The mechanics’ lien law existing when this contract was made, distinctly provided that no lien should be created thereunder, if the time stipulated thereunder for payment is beyond one year from the time stipulated for the completion of the work. Simon v. Blocks, 16 Ill. App. 450; M. J. Fitch Paper Co. v. McDonald, 91 Ill. App. 543. The question of whether Higinbotham waived his lien does not arise, because his contract was one under which be never had a lien. Whether a mechanics’ lien attaches under a building contract depends at the outset upon the nature of the contract and not upon that which is done under it. A contractor must show that his contract brings him within the terms of the law or he can not have a lien. (Cook v. Heald, 21 Ill. 425.) A mechanics’ lien arises from the contract, the doing of work or furnishing materials, not from a failure to give notes or a mortgage as promised. We have thought it right to pass upon the right to a lien urged by Higinbotham, notwithstanding we are of the opinion that cross errors are improperly assigned by him upon this appeal. Higinbotham has neither appealed from nor sued out a writ of error as to the decree of the Circuit Court. Ho one has appealed from the decree in favor of Horton nor from the decree dismissing Higinbotham’s cross-bill. True it is that if Higinbotham were entitled to a lien he would be, as he declares he is, interested in maintaining the decree against appellants; and the argument made by him in support of such decree is properly filed. But his assumed interest in maintaining that decree gives him no right to assign error in dismissing his bill, from which dismissal neither he nor any one has appealed. The fact that the evidence heard upon these bills related at times to his cross-bill adds nothing to his right. The decree entered by this court upon the present appeal will not be in affirmance of the decree dismissing his cross-bill; as to that he may hereafter sue out a writ of error. The decree of the Circuit Court is affirmed.