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Subscribed and sworn to before me this
Duty of register of deeds.
Fee for filing, etc,
Service on owner, etc.
The register of deeds shall indorse upon every statement or account, the date of its filing, and make an abstract thereof in a book to be kept by him for that purpose, and properly indexed, containing the date of its filing, the name of the person claiming the lien, the amount of the lien, the name of the person against whom the lien is filed, and a description of the property to be charged with the same, and such filing shall have the same effect as to notice as against subsequent purchasers or incumbrancers as the recording of a mortgage. The register of deeds shall receive the sum of seventy-five cents as his fees for the filing of such statement or account, and all subsequent papers filed with him relating to such lien.
SEC. 6. Every person filing such statement or account as provided in the preceding section shall, within ten days after the filing thereof, serve on the owner, part owner or lessee of such premises, or in his absence from the county, on his agent having charge of such premises, if either of such persons can be found within the county wherein the property is situated, a copy of such statement or claim; but if neither of such persons can be found within the county where such premises are situated, then such copy shall be served by posting the same in some conspicuous place on said premises, within five days after the same might have
been served personally, could the principal or agent, as Proof of service, aforesaid, have been found. Proof of such service and
the date and manner thereof shall be made by the affidavit
any contractor, subcontractor, material-man or laborer may, at any time, be vacated and discharged, if the owner, part owner or lessee or contractor,
shall give to each of such persons whose liens are to be Filing of bond. discharged, and file with the clerk of the circuit court for
the county in which such property is situated, a good and sufficient bond in the penal sum of twice the amount for which the lien is claimed, with two or more sureties to be approved by the said clerk, conditioned for the payment of any sum for which the obligee in such bond may obtain judgment or decree upon the demand for which said statement of account was filed, which sureties shall justify their responsibility before such clerk or a circuit court commissioner under oath, and shall severally testify that they are each worth in real estate in the county in which such property is situated, over and above all exemptions, incumbrances, debts, and other liabilities, the penal sum of said
Discharge of len, etc.
bond, each of which justifications shall be indorsed in full on said bond; the said clerk, on filing such approved bond, Certificate of shall at once give to the obligor named therein, a certificate that a good and sufficient bond has been filed with him, as required by law, and shall state the names of the obligor and.obligee, the amount of the bond and description of the property covered by the lien thereby discharged. Upon the filing of said certificate in the office of said register of deeds, the lien of the obligee therein named, if of record, shall thereby be discharged.
SEC. 8. Each person claiming a lien as aforesaid shall, Claimant to furfrom time to time, whenever required by such owner, part of material, etc. owner or lessee, or his agent, and within five days from demand thereof, furnish such person demanding the same, a written statement of the amount of work and materials furnished to date of statement, and then unpaid, as nearly as can then be ascertained, under penalty of a forfeiture of his lien. Such owner, part owner or lessee shall, within To show confive days after demand of any person claiming lien as tract, etc. aforesaid, produce the contract existing between himself and the contractors, if in writing, and freely permit such lien claimant to make a copy thereof, and shall also, within five days after demand thereof, furnish such lien claimant a written statement of the amount due and unpaid on such contract. If such owner, part owner or lessee shall neglect or refuse to allow any lien claimant to make a copy of said contract, or shall neglect or refuse to make such written statement of the amount due and unpaid thereon, as aforesaid, he shall be liable to such lien claimant, his representatives or assigns, each time he so refuses or neglects to comply with such demand, in the sum of one hundred dollars, and also for all actual damages occasioned by such neglect or refusal, to be recovered in an action on the case or to be awarded by a court of equity upon a bill filed to compel the production of such contract, or closure of the amount due and unpaid thereon.
SEC. 9. The several liens herein provided for shall con- Time lien continue for twenty days after such statement or account is tinuos. filed in the office of the register of deeds, and no longer, unless proceedings are begun to enforce the same, as hereinafter provided. And such liens shall take priority as Priority of llens. follows:
First, As between persons claiming liens under this statute the several liens upon the same property attaching by reason of work, labor or materials, furnished in carrying forward or completing the same building, machinery, structure or improvement shall be deemed simultaneous mortgages;
Second, They shall take priority to all garnishments for the contract debt made prior or subsequent to the commencement of the furnishing of the materials or performance of
In case of other building, etc.
the labor, without regard to the date of filing the claim for lien;
Third, They shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, subsequent to the commencement of said building, erection, structure improvement;
Fourth, The liens for such labor or materials furnished, including those for additions, repairs and betterments, shall attach to the building, machinery, erection, structure or improvement for which they were furnished or done, in preference to any prior title, claim, lien, incumbrance or mortgage to or upon the land upon which such building, machinery, erection, structure or improvement belongs or is put.
If such materials were furnished or labor performed in the erection or construction of an orginal or independent building, erection or other improvement, commenced since the attaching or execution of such prior title, claim, lien, incumbrance or mortgage, the court may, in its discretion, order and direct such building, erection or improvement to be separately sold under its decree, and the purchaser may remove the same within such reasonable time as the court may fix; but if, in the discretion of the court, it should not be separately sold, the court shall take an account and ascertain the separate values of the land and the erection, building or other improvements, and distribute the proceeds of the sale so as to secure to the prior title, claim, mortgage or other lien, priority upon the land, and to the mechanics' lien priority upon the building, erection or other improvement, if the materials furnished or labor performed be for addition to, repairs of, or better
ments upon the building, erection or other improvement, Court to take ac- the court shall take an account of the value before such
materials were furnished, or labor performed, and the enhanced value caused by such additions, repairs or betterments, and upon the sale of the premises distribute the proceeds of sale so as to secure to the prior title, mortgage or lien, priority upon the land and improvements to the amount as they existed prior to the commencement of the improvements, and to the lien priority upon the enhanced
value caused by such addition, repairs or betterments. Proceedings to SEC. 10. Proceedings to enforce such lien shall be by enforce llen, etc. bill in chancery, under oath, and notice of lis pendens
filed for record in the office of the register of deeds shall have the effect to continue such lien pending such proceedings. And in such proceedings, the complainant shall make all persons having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien,
count of value, etc.
be made parties thereto,
may be submitted
ine claims, etc.
parties to such action. And all persons holding like liens or How others may having filed notice of intention to claim a lien, or any other persons having rights in said property, may make themselves parties thereto on motion to the court, and notice to complainant, and may file their intervening or cross-bills or answers claiming the benefit of cross-bills and notices of lis pendens therein. Intervening or cross-bills shall be on oath, and all bills sworn to shall be evidence of the matters therein charged unless denied by answer under oath. Amendments may be made to any bill or cross-bill at any time before final order, and if it shall appear that any party has had insufficient notice of any such [proceedings proceeding, such further notice shall be given as the court shall think just.
Sec. 11. Every material question of fact may be sub- Questions that mitted to a jury in the discretion of the court, as in to jury. ordinary chancery cases; and such trial shall be had upon a question stated or upon an issue formed under the direction of the court, or otherwise, as the court shall order.
SEC. 12. The court shall examine all claims that shall be Court to exampresented, and shall ascertain and determine the amount due to each creditor who has a lien of the kind before mentioned upon the estate in question, and every such claim that is due absolutely and without any condition, although not then payable, shall be allowed with a rebate of interest to the time when it would become payable.
SEC. 13. When the owner, part owner or lessee, shall when owner have failed to perform his part of the contract, and by his part of con reason thereof, the other party shall, without his default, tract, etc. have been prevented from completely performing his part, he shall be entitled to a reasonable compensation for as much thereof as he has performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly.
SEC. 14. Upon final decree the court may order a sale Final decree of of the buildings or machinery separate, or the lands, build- court, etc. ings, machinery, structure, or improvements, together, by a circuit court commissioner or receiver, or may order the property into the hands of a receiver to be leased or rented from time to time under the direction of the court until the liens shall be discharged, or make such other order or disposition of the premises as justice may require. If upon the coming in and confirmation of the final report any portion of the liens shall still be unpaid, the court may enter personal decree for the same against the party who may be personally liable therefor, and execution shall issue for the same as upon other personal decrees rendered by the court.
Sec. 15. If any part of the premises can be separated sale of part of from the residue and sold without damage to the whole, and if the value thereof shall be sufficient to satisfy all the claims proved in the case, the court may order å sale of
In case all claims are ascortalned, etc.
have not been
that part, if it shall appear to be most for the interest of all the parties concerned.
SEC. 16. If the claims against the estate are all ascertained at the time of ordering the sale, the court may at the same time order the officer to pay over and distribute the proceeds of the sale, after deducting all lawful charges and expenses to and among the several creditors to the amount of their respective claims, if there is sufficient therefor; and if there is not sufficient, then to divide and
distribute the same among the creditors in proportion to Proviso. the amount due to each of them: Provided, however, That
such original contractor shall be subrogated to the rights of his subcontractors, material-men and laborers, who shall first be paid in full; and that the subcontractors shall be subrogated to the rights of their material-men and labor
ers, who shall first be paid in full. In case all claims SEC. 17. If the claims shall not have been ascertained ascertained.
when the sale is ordered, or if for any other reason it shall be deemed proper to postpone the order of distribution, the court may direct the officer to bring the proceeds of sale into court to be disposed of according to the order of such court; and if in consequence of the claims of attaching creditors, or for other cause, the whole cannot be properly distributed at once, the court may make two or
more successive orders of distribution as the cir. cumstances may require.
SEC. 18. If there be any surplus of the proceeds of the sale, after making all the payments before mentioned, it shall forthwith be paid over to the owner, part owner, lessee, or other person entitled thereto; but such surplus shall be liable to be attached or taken in execution in like manner
as if it proceeded from a sale made under execution.
SEC. 19. Sales under such decrees shall be made in the same manner as in ordinary cases of mortgage foreclosure unless otherwise directed by the court; and all lands sold under such order or decree of the court may be redeemed at any time within fifteen months from the time of filing such bill for such foreclosure.
SEC. 20. When there are several attaching creditors they shall, as between themselves, be entitled to be paid according to the order of their respective attachments, but when several creditors, who are entitled to the lien provided for in this act, have equal rights as between them. selves, and the fund shall be insufficient to pay the whole they shall share it equally in proportion to their respective claims.
SEC. 21. The costs in all cases shall be subject to the discretion of the court and shall be paid out of the proceeds of the sale, or by any parties to the suit, as justice and equity may require.
SEC. 22. Except as herein otherwise expressly provided,
In case of surplus.
HOW sales made, etc,
In case of sev. er al clalmants,