statute allowing a justice of the supreme court, in his discretion, to order lien claims to be amended in matters of substance as well as in matters of form, a lien claim filed on several lots may be amended so as to apportion the claim between the lots.102 But if a claimant under such statute, with full knowledge of all the facts, files a lien claim, and brings suit against the wrong person as builder, an amendment will not be allowed at the trial, substituting the name of the person who contracted the debt.103 Under a statute providing that in mechanic's lien cases amendments in furtherance of justice shall be allowed at any stage of the proceedings by changing, adding to, or striking out the names of claimants, or owners and contractors, such amendments can be permitted after the time allowed for filing only when the claimant can show that the owner will not be affected thereby.1 Thus a claim cannot be amended after that time by striking off the name of the owner and joining his wife as a co-defendant,1 105 or by adding the names of new parties as owners or reputed owners,106 or changing the name of the owner,107 or adding the name of the contractor,108 even though the contractor consents thereto.109 But where a claim names the claimant as W., it may be amended so as to name as claimants "J., R., and W., to the use of W.," since the proposed amendment will be allowed where its effect is not to add a new claimant, but merely to set forth the claimant's title.110 And where the bill of particulars filed with the claim and made a part of it shows that the person alleged in the caption to be the contractor in reality contracted for the party named therein as owner for the materials for which the lien is claim

104

102 James v. Van Horn, 39 N. J. Law, 353. 103 Bartley v. Smith, 43 N. J. Law, 321.

104 Dennis v. Williamson, 2 Pa. Dist. Ct. R. 481. And the burden of proof is on the claimant to show that the desired amendment is of that nature.

105 Knox v. Hilty, 11 Atl. 792, 118 Pa. St. 430.

106 O'Neill v. Hurst, 11 Phila. (Pa.) 171.

Id.

107 Nason Manuf'g Co. v. Trustees of Jefferson Medical College Hospital, 12 Phila. (Pa.) 483.

108 Horton v. Watson, 8 Pa. Co. Ct. R. 143; Murta v. Stephenson, 2 Pa. Dist. R. 480.

109 Murta v. Stephenson, 2 Pa. Dist. R. 480.

110 Jones v. Philler, 13 Pa. Co. Ct. R. 232.

111

112

ed, as set forth in such annexed bill, a petition, supported by affidavits, for leave to amend the lien by adding the name of the contractor, may be allowed.1 A statute authorizing amendments to mechanic's lien claims not only authorizes technical corrections, but permits, for instance, an amendment showing that the work was done within six months, where the claim as filed did not show this.1 And under such a statute, where the property on which the lien is claimed consists of two houses under one roof, although such fact does not appear in the claim, the claimant may be granted leave to amend his statement and bill by apportioning his claim.113 So, too, under such a statute, in an action to foreclose a mechanic's lien the court has power, where the claim is defective in not describing the land on which the work was done, to allow an amendment in that particular.114

§ 465. Under a statute allowing amendments to be made at any time before judgment on the claim, such an amendment may be made after expiration of the time for filing an original claim.115 But under a statute which provided that failure to file a claim of lien shall not defeat the lien, "except as against purchasers and incumbrancers in good faith without notice," after the time limited has expired, and before any claim for lien is filed, it was held that on foreclosure of a lien the claim of lien could not be amended to include land omitted, as against a "purchaser in good faith without notice," after the time for filing liens had expired, and before any claims for lien were filed.116 Mortgagees of property on which a lien is claimed, whose relation to the property has not been changed since the filing of the lien claim, cannot object to an amendment of the claim correcting a defective verification, made by virtue of an act authorizing amendments where the claims of third persons are not affected, on the ground that their interest would be prejudiced.117 Where

111 Hoffa v. Homestead Bldg. Ass'n, 3 Pa. Dist. R. 566.

112 Gebhard v. Levering, 14 Phila. (Pa.) 120.

113 Hoffmaster v. Knupp, 15 Pa. Co. Ct. R. 140.

114 Huse v. Washburn, 18 N. W. 341, 59 Wis. 414; Sherry v. Schraage, 4 N. W. 117, 48 Wis. 93.

115 Drinkhouse v. Manufacturing Co. (N. J. Sup.) 33 Atl. 950.

116 Chicago Lumber Co. v. Des Moines Driving Park (Iowa) 65 N. W. 1017. 117 Sullivan v. Treen (Wash.) 43 Pac. 38.

the statute allowing amendments does not expressly so require, an amendment need not be verified.118

DIVISION IV. TIME FOR FILING.

Need of Filing in Time.

§ 466. As a mechanic's lien is necessarily a secret lien until some record of it is made either by beginning suit or filing a claim of lien, and as secret liens are not favored by the law, the mechanic's lien statutes invariably limit the time within which a lien claim may be filed. This time varies under different statutes. A claim filed after expiration of the limited time is usually of no effect.1 But the mere fact that a claimant has postponed the filing of his claim till towards the end of the time limited for that purpose will not affect his statutory right, no matter what may have been his motive.120 And a claim filed on the last day of the time limited therefor is good, even

118 Drinkhouse v. Manufacturing Co. (N. J. Sup.) 33 Atl. 950.

119

119 Arkansas Cent. R. Co. v. McKay, 30 Ark. 682; Sparks v. Mining Co., 55 Cal. 389; Filer & Stowell Co. v. Empire Lumber Co., 18 S. E. 359, 91 Ga. 657; City of Crawfordsville v. Brundage, 57 Ind. 262; Alexandria Bldg. Co. v. McHugh, 40 N. E. 80, 12 Ind. App. 282; Groesbeck v. Barget (Kan. App.) 41 Pac. 204. Lapene v. Meegel, 26 La. Ann. 80; Wheelwright v. Transportation Co., 17 South. 133, 47 La. Ann. 533; Farnham v. Davis, 9 Atl. 725, 79 Me. 282; Olson v. Manufacturing Co., 33 N. W. 791, 37 Minn. 298; Stebed v. Stock, 31 Mo. 456; Bolen Coal Co. v. Ryan, 48 Mo. App. 512; Alesina v. Stock, 20 Pac. 642, 8 Mont. 416; Wells v. Association, 61 N. W. 623, 43 Neb. 366; McPhee v. Kay, 46 N. W. 223, 30 Neb. 62; Hansen v. Kinney, 64 N. W. 710, 46 Neb. 207; Spencer v. Barnett, 35 N. Y. 94; Tiley v. Hotel Co., 9 Hun, 424; McMahon v. Hodge (Com. Pl.) 21 N. Y. Supp. 971; Donaldson v. O'Connor, 1 E. D. Smith (N. Y.) 695; Rogers v. Klingler, 3 Whart. (Pa.) 332; Ramsey's Appeal, 2 Watts (Pa.) 228; Lewis v. Morgan, 11 Serg. & R. (Pa.) 234; Hern v. Hopkins, 13 Serg. & R. 269; Mowry v. Hill, 14 R. I. 504; Huck v. Gaylord, 50 Tex. 580; Cameron v. Marshall, 65 Tex. 7; McClelland v. Withers, Fed. Cas. No. 8,696, 4 Cranch, C. C. 668; Waller v. Dyer, Fed. Cas. No. 17,108, 5 Cranch, C. C. 571; Boston v. Railroad Co., 76 Va. 180.

120 Bohn Sash & Door Co. v. Case, 60 N. W. 576, 42 Neb. 281. Nor will it make his lien subject to those of claimants who previously filed claims, where the liens attach from the beginning of the work. Morrison v. Carey-Lombard Co., 33 Pac. 238, 9 Utah, 70.

though it is not recorded 121 or docketed 122 until the following day, since the claimant's responsibility ceases when he loses control over the claim by filing it. But in New York, under a statute which declared that the lien should attach from the time of filing the claim, and that such claim might be filed within six months, it has been held that a man furnishing materials to a contractor to build a house, and not filing his claim of lien until after the last payment on the contract has been made, although it was within six months after furnishing the materials, cannot recover against the owner.123

§ 467. Some statutes prescribe that failure to file the claim within the time limited merely subordinates the lien to the rights of purchasers and incumbrancers. Under such statutes, a claim filed after the proper time is nevertheless good as against the contracting owner. 124 Under a statute declaring that a subcontractor's failure to file his statement within 40 days after the last work or material was furnished shall not defeat his lien except against bona fide purchasers, etc., or an owner "who shall have fully paid the contractor, after the time for filing such subcontractor's lien statement has expired," a claim filed after expiration of the 40 days is good only where payment in full had not been made at the time the claim was filed.12: Where the statute declares that failure to file a claim within 90 days does not defeat the lien "as against any one except purchasers or incumbrancers without notice whose rights accrued after the 90 days and before the claim is filed," a mortgage recorded during the 90 days is subordinate to the lien, even though the

121 Bassett v. Brewer, 12 S. W. 229, 74 Tex. 554; Wood v. Simons, 110 Mass. 116.

122 Speakman v. Knight, 3 Phila. (Pa.) 25.

123 Carman v. McIncrow, 13 N. Y. 70, 2 E. D. Smith (N. Y.) 689.

124 Noel v. Temple, 12 Iowa, 276; Kidd v. Wilson, 23 Iowa, 464.

But where a subcontractor fails to file his statement of material furnished, within 30 days from the date of the last item furnished, as required by McClain's Code Iowa, § 3315, in order to preserve his lien and prevent payment to the principal contractor, and the owner of the property pays the principal contractor, a statement and notice, subsequently made by the subcontractor, does not preserve his lien. Hugg v. Hintrager (Iowa) 45 N. W. 1035; Thompson v. Spencer (Iowa) 63 N. W. 695.

125 John Mouat Lumber Co. v. Gilpin, 36 Pac. 892, 4 Colo. App. 534.

claim was not filed within the 90 days.126 And so is an attachment levied before expiration of the 90 days.12 Under a statute declaring that no creditor shall be allowed to enforce a lien against or to the prejudice of any other creditor or purchaser unless a claim for a lien shall have been filed within four months after the last payment shall have become due and payable, one who buys after the claim for a lien is filed, and who has full notice of it, takes title free of the lien if the claim is filed after said four months.128 A statutory rule precluding a mechanic's lien not filed within 90 days, when the property has passed to an innocent purchaser, is not varied by the fact that he only took a bond for a deed, and paid no cash, but gave his note for the purchase money. Under a statute declaring mechanics' liens valid against third persons from the date of recording, and providing that a mechanic's lien should not be preferred to a prior mortgage unless recorded on the day the contract was made, a claim recorded after the day the contract was made is good as against subsequently recorded mortgages,130 but not as against mortgages recorded before 131 or on the same day as the claim. 132

129

§ 468. In Pennsylvania, where a judicial sale of land extinguishes all liens on it, the claim of a mechanic to perpetuate his lien may be filed after a judicial sale of the property if the statutory time for filing such claim has not expired, since, where the purchase money is substituted for the land, there is no reason why the lien should not attach itself to it as it would to the land in the hands of the purchaser were it liable to the charge; and in Oregon a claim for mechanic's lien may be filed after suit to foreclose the lien has been begun, if the filing is within the statutory time.134

133

126 Evans v. Tripp, 35 Iowa, 371; Wisconsin Trust Co. v. Robinson & Cary Co.. 15 C. C. A. 668, 68 Fed. 778.

127 Curtis v. Broadwell, 24 N. W. 265, 66 Iowa, 662.

128 Von Tobel v. Ostrander, 42 N. E. 152, 158 Ill. 499; Ostrander v. Von Tobel, 56 Ill. App. 381.

129 Weston v. Dunlap, 50 Iowa, 183.

130 Gay v. Bovard, 27 La. Ann. 290; State v. Recorder of Mortgages, 28 La. Ann. 534.

131 Citizens' Bank v. St. Louis Hotel Ass'n, 27 La. Ann. 460.

132 State v. Recorder of Mortgages, 28 La. Ann. 534.

133 Burt v. Kurtz, 5 Rawle (Pa.) 246.

134 Whittier v. Logus, 11 Pac. 305, 13 Or. 546. This decision goes upon the