Maturity of Debt.

§ 491. Some statutes date the time of filing the claim from the maturity of the debt, instead of the completion of the contract. der these statutes the time of completing the contract usually cuts no figure in determining whether the claim is filed in time,260 except that where it is not shown that credit was to be given, the debt matures when the last work was done or last material furnished, and the time for filing therefore begins to run at that time.261 As a general rule, the time for filing under such statutes does not begin to run until there is a right of action on the debt. Thus the effect of a purchase of materials "on six months' time" is to make the time for filing begin to run at the expiration of six months from the delivery of the last item; 262 and, where a note is given on the day of delivery, the time for filing begins to run from the maturity of the note, even as against a mortgagee without notice.263 There

is, however, a decision in Missouri to the effect that, under a statute requiring the claim to be filed within six months after the indebtedness shall have accrued, the indebtedness accrues upon its coming into existence as a completed obligation, although it cannot be sued upon until due.264 Where a building contract provides for payment only upon acceptance of the work, the cause of action thereon does not accrue, so as to start the time for filing a claim, until the work is accepted, even though it is not accepted until some time after its completion.265 And where a contract provides that the price shall "be payable, when the job is completed, in satisfactory six months'

260 Newgass v. Atlantic & D. Ry. Co., 56 Fed, 676.

261 Robinson v. Marney, 5 Blackf. (Ind.) 329; Matthews v. Wagenhaeuser Brewing Ass'n, 19 S. W. 150, 83 Tex. 604; Piper v. Hoyt, 17 Atl. 798, 61 Vt. 539; Ehlers v. Elder, 51 Miss. 501.

262 Langford v. Mackay, 12 Ill. App. 223.

263 Goble v. Gale, 7 Blackf. (Ind.) 218.

264 Great Western Manuf'g Co. v. Burns, 59 Mo. App. 391, 1 Mo. App. Rep'r. 32. In the case of Ringle v. Iron Works, 24 N. Y. Supp. 757, 4 Misc. Rep. 15, it was held that a subcontractor's account was due on completion of his subcontract, so as to entitle him to file his claim then, although it was not payable until completion of the principal contract; but on appeal this decision was modified, and the lien denied. Ringle v. Iron Works, 28 N. Y. Supp. 107, 76 Hun, :). 265 Johnson v. White (Tex. Civ. App.) 27 S. W. 174.

paper, interest added," the payment does not fall due till the expiration of six months from completion of the job, even though the paper is not given, since the agreement to take it extends the time of payment.266

§ 492. Under a statute providing that no person shall be entitled to a lien unless he shall file his claim within six months after his account has fallen due, a contractor whose account is payable in installments may file his claim within six months after the last installment falls due.267 And under a statute requiring the claim to be filed within 30 days from the time the indebtedness accrues or from the completion of the building a claimant must file his claim within 30 days from the time his account accrued, if that be before the completion of the building.268 In a case in Alabama it appeared that a building contract provided for the construction of a house, and the furnishing of the material, for a stipulated compensation, payable in several specific installments according to the progress of the work; the last, including a sum retained by the owner as security for faithful performance, being payable on the completion of the house. While in the process of construction, the house was willfully burned by the owner's agent, without the contractor's fault. On these facts the court held that the owner's obligation to repay the sum retained as security accrued on the destruction of the house, within the meaning of the Alabama statute which requires every contractor who seeks to enforce a mechanic's lien to file his demand within six months after the indebtedness has accrued.20 269

Computation of Time.

§ 493. It has been said that in computing the time within which a mechanic's lien claim may be filed, either the day on which the last work is done or the day on which the claim is filed must be excluded,270 but, as a general rule, the first day for filing is excluded

266 Wheeler v. Schroeder, 4 R. I. 383.

267 Newgass v. Railway Co., 56 Fed. 676.

268 Patrick v. Ballentine, 22 Mo. 143.

269 Cutcliff v. McAnally, 7 South. 331, 88 Ala. 507.

270 In re Martin, 4 Fed. 208.

and the last one included. 271 Under a statute providing that the "time within which an act is to be done, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded," where the time for filing prescribed by the mechanic's lien law, after the indebtedness accrues, expires on Sunday, the lien is insufficient unless the claim is filed on the Saturday preceding.272 A claim put into the hands of the proper of ficer within the time for filing is not too late although he does not take the claim to his office and record it until after the prescribed time for filing has expired.273 In computing time under mechanic's lien laws the courts do not ordinarily take notice of portions of a day. Thus, where a claim which should have been filed before the work was begun was filed at 10:30 o'clock a. m., and it appeared that the work was commenced no earlier than 8 or 8:30 a. m. of the same day, the evidence thereof being doubtful, and such work being of a trivial nature, a finding that the work commenced before said filing will not be sustained. 275

§ 494. Under a 60-day statute, a claim filed March 30th for work finished January 31st is in time; 276 and, under a 30-day statute, a claim filed July 20th for work finished June 21st is in time.277 So, too, under a statute providing that a claim shall not be filed until 10 days after notice is served on the owner, serving notice on the 15th and filing claim on the 25th of the same month are sufficient.278 But under a statute requiring a claim to be filed within six months, a claim filed July 23d for materials furnished January 22d is too late,279 and so is a claim filed November 17th for work completed

271 Esler v. Peterson, 8 Phila. (Pa.) 303; Hahn v. Dierkes, 37 Mo. 574.

272 Patrick v. Faulke, 45 Mo. 312. On the same principle, it has been held in New York that under the mechanic's lien law of 1875, in force in the city of New York, a notice of lis pendens, filed on the ninety-first day after notice of lien, the ninetieth day falling on Sunday, is filed too late. Bowes v. Christian Home, 64 How. Prac. (N. Y.) 509.

273 Wood v. Simons, 110 Mass. 116.

274 Haden v. Buddensick, 49 How. Prac. (N. Y.) 241.

275 Reed v. Norton, 26 Pac. 767, 90 Cal. 590.

276 White v. Soto, 23 Pac. 210, 82 Cal. 654.

277 Curtis v. Sestanovich, 37 Pac. 67, 26 Or. 107.

278 Hahn v. Dierkes, 37 Mo. 574.

279 Hoops v. Parsons, 2 Miles (Pa.) 241.

May 16th,280 and so is a claim filed June 16th for work completed December 15th.281 In a recent Washington case a lien claim filed by farm laborers on October 14th recited that claimants commenced work on August 10th and finished September 16th. One of the claimants testified merely that he worked 15 days. It was held that, since the presumption was that he worked continuously from August 10th, thereby making August 28th his last day, his claim was not filed within 40 days after the labor was performed, as required by statute.282

Filing after Death of Party.

§ 495. In states where a mechanic's lien accrues on the doing of the work, and not on the filing of the claim, a claim filed after the owner's death, but within the statutory period for filing, is in apt time. 288 But under a statute providing that mechanics' liens shall be preferred to any conveyance, judgment, or other claim which was not docketed or recorded at the time of filing the notice of lien, a lien filed after the death of the owner for work done before his death does not attach to the interest of the owner's devisees. 284 The death of the contractor, however, before a subcontractor or material man in the second degree has filed his claim, does not make such claim too late.285 It has been held in Pennsylvania, under a statute declaring that debts due mechanics shall not be a lien "except from the time of filing the claim," that a claim filed after the death of the owner of the building was not entitled to priority over the general debts of the owner.

286

280 City of Philadelphia v. Slonaker, 6 Phila. (Pa.) 48.

281 Hall v. Dougherty, 14 Phila. (Pa.) 190.

282 Pain v. Isaacs, 38 Pac. 1038, 10 Wash. 173.

283 Richardson v. Hickman, 32 Ark. 406. See ante, §§ 340, 341.

284 Tubridy v. Wright, 39 N. E. 640, 144 N. Y. 519, affirming 27 N. Y. Supp. 978, 7 Misc. Rep. 403.

285 Telfer v. Kierstead, 2 Hilt.* (N. Y.) 577; Watrous v. Elmendorf, 55 How. Prac. (N. Y.) 461.

286 Hoff's Appeal, 102 Pa. St. 218.

(509)

DIVISION V. EFFECT OF FILING CLAIM.

In General.

§ 496. Filing the claim does not create, but simply establishes, the lien. It changes an inchoate and defeasible right to a lien into a fixed and definite incumbrance.287 Under a statute providing that, when land of a decedent is sold on execution for more than enough "to pay off liens of record," the residue should be paid to the personal representatives, it has been held that mechanics' liens for which claims had been filed, but which had not been reduced to judgment, were liens of record, entitled to payment out of the proceeds. 288 But it has been held in New York that where the owner of a house insured it by a policy which provided that it should be forfeited "if without written consent hereon the property shall hereafter become incumbered in any way," and thereafter a mechanic's lien claim was filed without the owner's knowledge, the policy was not thereby invalidated, since the provision evidently applied only to incumbrances voluntarily created.289 A mechanic who files a claim for lien does not thereby release his debtor from personal liability.290 So, too, a subcontractor, to whom the contractor has given an order on the owner, may still enforce his rights under such order after he has filed his claim.291 And filing a claim of lien alleging performance of work done as a subcontractor does not estop the claimant

287 Welch v. Porter, 63 Ala. 225; Central Trust Co. v. Richmond, N., I. & B. R. Co., 15 C. C. A. 273, 68 Fed. 90; Viti v. Dixon, 12 Mo. 479; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 14 S. E. 35, 109 N. C. 658; Green v. Williams, 21 S. W. 520, 92 Tenn. 220; McVean v. Tiffin, 13 Ont. App. 4; Makins v. Robinson, 6 Ont. 5. It has been said by the supreme court of Oregon that filing the claim does not establish a lien, but merely prevents the lien previously acquired from lapsing, and that a claim may be filed after suit is commenced to foreclose said lien, if filed within statutory time. Whittier v. Logus (Whittier v. Blakely) 11 Pac. 305, 13 Or. 546.

288 Watt v. Vezin, 15 Phila. (Pa.) 180.

289 Green v. Insurance Co., 17 Hun (N. Y.) 467.

290 Artman v. Truby, 18 Atl. 1065, 130 Pa. St. 619; Maxey v. Larkin, 2 E. D.

Smith (N. Y.) 540; Pollock v. Ehle, Id. 541.

291 Dunn v. Stokern, 3 Atl. 349, 43 N. J. Eq. 401.