time prescribed for filing the lien. A mortgagee who advances the consideration at the time the mortgage is taken, is everywhere regarded as a purchaser for value under the recording acts, and no distinction can be made in principle between his rights and those of any other purchaser as against the mechanic's lien."

$46. Mechanics' Liens-Continued.

The statutory specification of a period of time within. which the claim of lien may be filed seems to have received both a narrow and a liberal construction by the courts; the one proceeding largely on the theory that this is intended only to fix a point of time after which such filing will be of no avail 3 The other construction is substantially the same that is given to the privilege of time allowed by some of the statutes for recording deeds and mortgages; and under this view it is held that when the claim is filed within the prescribed time, it relates back to the date of the contract, or commencement of the work, and takes precedence over intervening incumbrances, and also that when filed after the expiration of the statutory period, it is a valid lien from the date of

1 Odum v. Loomis, 1 Tex. Civ. App. §524; and see Foushee v. Grigsby, 12 Bush. 75.

2 In Kansas (Comp. Laws, 1879, art. 27. c. 80), the mechanic's lien has preference “of all other liens and incumbrances” which may attach to the property subsequent to the commencement of the work or repairs; and "all other liens and incumbrances" have been held to include a conveyance of the property. Warden v. Sabins, 36 Kan. 165; s. c. 12 Pac. Repr. 520. The Texas Statute gives the mechanic's lien preference over "any prior lien or incumbrance or mortgage" upon the land, not already existing at the time of the accrual of the mechanic's lien. Rev. Stats., art. 3171, as amended by Act of March 28, 1885. In Colorado the lien is superior to all after-acquired liens, and any prior liens of which the mechanic had no notice, actual or constructive. Tritch v. Norton, 10 Colo. 337.

3 See cases in note 3 on preceding page. Where the statute provided that the claim of lien must be filed within thirty days after completion of the building, a filing before completion was held premature. Roylance v. San Luis Hotel, 74 Cal. 273; s. c. 20 Pac. Repr. 7; Catlin v. Douglass, 33 Fed. Repr. 569.

See post, ch. 6.

filing, and entitled to priority over incumbrances subsequent to the date of record.1 In accordance with the former line of construction, it is held that actual notice will not, as in the case of rights and equities evidenced by deeds and other written instruments, supply the want of registry in charging notice; and under the latter construction actual notice is held sufficient.3 Except on the ground that record is essentially necessary to the existence of the lien, and is that by which, both in law and equity, the lien is created, it is difficult to perceive why the general principles of the registry laws should not apply equally to the record of mechanics' liens as to those of mortgage liens, just as far as the difference of circumstances and the rules of equity will permit.*

Both a strict and a liberal construction will also be found to have been applied by the courts in determin

1 The lien is good between the lien claimant and any incumbrancer whose right accrued during the time within which he is protected and preferred under the law. By his laches he simply loses a preference or priority over parties whose rights have accrued subsequently to the time within which such statement is required to be filed; and this, because the law, after the expiration of the thirty days, no longer affects them with constructive notice. Nail v. Temple, 12 Iowa, 276.

2 Neeley v. Searight, 113 Ind. 316; s. c. 15 N. E. Repr. 598; Foushee v. Grigsby, 12 Bush. 75; Van Loan v. Heffner, 30 La. Ann. 1213. 3 Nail v. Temple, supra.

4 The lien exists alone by virtue of the statute; but such statutes are remedial, and are to receive a liberal construction. White Lake Co. v. Russell, 22 Neb. 126; s. c. 34 N. W. Repr. 104; 3 Am. St. Rep. 562; and see Getchell v. Moran, 124 Mass. 404; McPhee v. Litchfield, 145 Mass. 565; s. c. 1 Am. St. Rep. 482; Gale v. Blaikie, 129 Mass. 206.

Occasional repairs, made months after the completion of the building, cannot be so added as to bring the claim of lien for the whole work within the statutory time. Davis v. Alvord, 94 U. S. 545. But work done from time to time, as ordered by the owner in the ordinary progress of erecting a building, is "continuous of that previously done," within the meaning of the Penn. Act of 1885, and the time for filing may be reckoned accordingly, although there was no contract for the whole work. Hofer's Appeal, 116 Pa. St. 360; s. c. 9 Atl. Repr. 441.

Where suit to enforce the lien is begun within the time allowed for filing the claim, such filing is not necessary, nor is the entry of any par ticulars of the lien in the mechanic's lien book. Anderson v. Seamans, 49 Ark. 475; s. c. 5 S. W. Repr. 799.

ing what will constitute a sufficient affidavit and statement of the claim required to be filed; the tendency of the decisions on this point being in favor of holding at substantial compliance with the statute to be sufficient.2

$47. Mechanics' Liens-Continued.

That

It is held in Maryland that in order to give a mortgage to secure future advances priority over a mechan-、 ic's lien, the mortgage must be first recorded.3 the account and bill of particulars filed embraced other lots than that on which the building was erected, and on which the lien was claimed, held not to vitiate.1

1 See Odd Fellows v. Masser, 24 Pa. St. 507; s. c. 64 Am. Dec. 675. Signing the affidavit held necessary in Maine, although the name be at the top of the account. Stratton v. Shoenbar (Me.), 10 Atl. Repr. 446. Not necessary in Oregon, and literal compliance with the statute not required. Ainslie v. Kohn, 16 Or. 363; s. C. 19 Pac. Repr. 97; Whittier v. Blakeley, 13 Or. 546; Kezartee v. Marks, 15 Or. 529; s. c. 16 Pac. Repr. 407. In Kansas the affidavit must be signed. Hentig v. Perry, 17 Pac. Repr. 42; but not the statement of claim also; Deatherage v. Woods, 37 Kan. 59; s. C. 14 Pac. Repr. 474. It may be made by one member for a firm. Id. And may be made before the attorney for the claimant. McDonald v. Willis, 143 Mass. 452; s. c. 9 N. E. Repr. 835. And omission of the officer to append his jurat held not to vitiate. Jackman v. Gloucester, 143 Mass. 380. For other cases, see Lindley v. Cross, 31 Ind. 106; s. c. 99 Am. Dec. 610; Kennedy v. House, 41 Pa. St. 39; s. c. 80 Am. Dec. 594; Brennan v. Swasey, 16 Cal. 140; s. c. 76 Am. Dec. 507.

2 A strict technical averment of ownership of the property not exacted. Hays v. Mercer, 22 Neb. 656; s. c. 35 N. W. Repr. 894; but upheld though the affidavit is, on this point, "to the best of affiant's knowledge and belief," and the ownership is wrongly stated. McPhee v. Broderick, 145 Mass. 565; s. c. 14 N. E. Repr. 923; but see Morrison v. Phillips, 35 Minn. 192.

Omission to state credits in the account, as required by the statute, held immaterial. McCormack v. Phillips (Dak.), 34 N. W. Repr. 39; Whittier v. Blakeley, 13 Or. 546; s. c. 11 Pac. Repr. 305.

A reasonably certain description of the property is sufficient. White v. Stanton, 111 Ind. 540; s. c. 13 N. E. Repr. 48; Smith v. Sarver (Pa.), 7 Atl. Repr. 99; and is not void because including more land than is subject to the lien, if no fraudulent intent. White Lake Co. v. Russell, supra; 34 N. W. Repr. 104. A liberal construction to be applied. Merriman v. Bartlett, 34 Minn. 524; s. c. 26 N. W. Repr. 728.

3 Brooks v. Lester, 36 Md. 65.

Lyon v. Logan, 68 Tex. 521.

Such misdescriptions are immaterial.1 A description that would be adequate in a conveyance, or that can be rendered certain by the references, is sufficient." But a claim of lien on one of two lots, is void for uncertainty ;3 and so, where the account and the bill of particulars materially vary in the description. It is immaterial that the lien was recorded in a book kept for the record of bills of sale, provided all such liens were recorded in that book; and where the statute required only that liens should be recorded in books kept separate from those for the record of deeds and other conveyances, it did not vitiate the record of the mechanic's lien that it was made in the mortgage book. The certificate of the recorder is sufficient prima facie proof of the filing and recording of the account and accompanying affidavit.7 Where, after the lien is filed, a note was taken for the amount due, which note reserved a lien, but was not recorded, it was held that the lien of record not waived or affected.8 A bond by the mechanic, conditioned to do the work properly, and accepted by the other party, will answer for the written contract required to be recorded. Where the contract is verbal, a failure

1 Edwards v. Derrickson, 4 Dutch. 39; Shattuck v. Beardsley, 46 Conn. 386; Oster v. Robenean, 46 Mo. 595; White Lake Co. v. Russell, 22 Neb. 126; s. c. 3 Am. St. Rep. 262.

2 Swope v. Stantzenberger, 59 Tex. 387; Stuart v. Broome, Id. 446; Gillespie v. Remington, 66 Tex. 109; Phillips on Mechanics' Liens, 379; Whitemark v. Noe, 3 Stark's Ch. 321; Merriman v. Bartlett, 34 Minn. 524; s. c. 26 N. W. Repr. 728.

3 Lyon v. Logan, 66 Tex. 57.

4 Adams v. Cook, 55 Tex. 161.

5 Lyon v. Logan, 68 Tex. 521.

6 Quinn v. Logan, 67 Tex. 601; s. c. 4 S. W. Repr. 247; Billings v. Martin (Me.), 10 Atl. Repr. 445.

7 Stuart v. Broome, 59 Tex. 466.

8 Pope v. Graham, 44 Tex. 196; Phillips on Mechanics' Liens, 276; Grant v. Strong, 18 Wall. 623. Nor is it affected by a removal of the indexed statement from the files of office. Bell v. Teague (Ala.), 3 South. Repr. 861.

Martin v. Roberts, 57 Tex. 564.

to record the bill of particulars is fatal to the lien.1 The contract required to be recorded is the one by virtue of which the work was done or material furnished, and not any subsequent contract relating to the matter.2

$48. Miscellaneous Instruments.

Under New York Rev. Stats., §137, p. 738, declaring that grants in fee of freehold estates shall not take effect as against purchasers and incumbrancers unless acknowledged or attested, it has been held that a servitude was not an estate in lands within the meaning of that act. This, however, is not the general rule; the decision in that case proceeding upon the terms of the act under construction. Where a grantor conveyed land by deed in which no mention was made of a right-of-way that had been reserved by verbal agreement with the grantee, it was held that a purchaser from the grantee, for valuable consideration and without actual notice of such reservation, took the land freed from the easement, because notice of the same had not been given by some conveyance thereof duly recorded. 4 So, the grant of a private right-of-way to an adjoining landowner, is within the registry laws. A certificate of division of partnership property, including lands, was held recordable as an instrument concerning lands; and a written acknowledgment by the grantee of a land certificate already located, that he had previously sold and conveyed it, is an 1 Lyon v. Ozee, 66 Tex. 95.

2 Reese v. Corlew, 60 Tex. 70; Taylor v. Huck, 65 Tex. 238; Lee v. But see Mundin v. Berwin, Phelps, 54 Tex. 368; Lyon v. Ozee, supra. 62 Tex. 341.

3 Nellis v. Munson, 24 Hun. 575; Nellis v. Munson, 108 N. Y. 453; Snell v. Levitt, 110 N. Y. 595. For case holding that under this act a subsequent purchaser acquired the title although he bought with actual notice of a prior conveyance, and was not a purchaser for valuable consideration, see Chamberlain v. Spargur, 86 N. Y. 603; s. c. 22 Hun. 437. 4 Bush v. Golden, 17 Conn. 594.

5 Prescott v. Beyer, 34 Minn. 493; s. c. 26 N. W. Repr. 732; Worley v. State, 7 Lea, 382.

Pegram v. Owens, 64 Tex. 475.