Contracting Owner.

§ 526. The person who, as owner of the land, contracted for its improvement, is a proper and usually a necessary party defendant to a suit to enforce mechanics' liens growing out of such contract.103 An exception to this rule exists where such owner has conveyed all his interest in the property. In that case he is not a necessary party defendant,104 though he may be made a defendant for the purpose of obtaining a personal judgment against him.105 And where a corporation (as a church) with whom a contract was made for materials with which to erect a building ceases to exist, and becomes disorganized, it is not necessary to make such body a defendant, on petition to establish and enforce a mechanic's lien.1

Other Owners.

106

§ 527. The person who, when the suit is begun, owns the estate to which the lien attaches, is, according to the better reason and the weight of authority, a necessary party defendant to a suit to enforce the lien.107 There are, however, some decisions that hold

103 Roman v. Thorn, 3 South. 759, 83 Ala. 443; Meyers v. Le Poidevin, 4 N. W. 319, 9 Neb. 535; Murdock v. Hillyer, 45 Mo. App. 287. When owners of adjoining lots jointly contract for the erection of one building upon the entire tract, they may be joined as defendants in a suit to foreclose a mechanic's lien on such building. Carter Lumber Co. v. Simpson, 18 S. W. 812, 83 Tex. 370; J. A. Treat Lumber Co. v. Warner, 18 N. W. 747, 60 Wis. 183.

104 Rose v. Paper Works, 29 Conn. 256; Kellenberger v. Boyer, 37 Ind. 188; McCormick v. Lawton, 3 Neb. 449; Pickens v. Polk, 60 N. W. 566, 42 Neb. 267; Robins v. Bunn, 34 N. J. Law, 322; Cullers v. Bank (Tex. Civ. App.) 29 S. W. 72.

105 Pickens v. Polk, 60 N. W. 566, 42 Neb. 267.

106 Jennings v. Hinkle, 81 Ill. 183.

107 Hughes v. Torgerson, 11 South. 209, 96 Ala. 346; Whitney v. Higgins, 10 Cal. 547; Franklin Sav. Bank v. Taylor, 23 N. E. 397, 131 Ill. 376; Holland v. Jones, 9 Ind. 495; Marvin v. Taylor, 27 Ind. 73; Vorhees v. Beckwell, 37 N. E. 811, 10 Ind. App. 224; Gammel v. Young, 3 Iowa, 297; Keller v. Tracy, 11 Iowa, 530; Peabody v. Society, 5 Allen (Mass.) 540; Burbank v. Wright, 47 N. W. 162, 44 Minn. 544; Clark v. Brown, 25 Mo. 559; Pickens v. Polk, 60

N. W. 566, 42 Neb. 267; Green v. Sandford, 51 N. W. 967, 34 Neb. 363; In re Smith, 4 Nev. 254; Edwards v. Derrickson, 28 N. J. Law, 39; Derrickson v.

that one who buys the property after the lien attached, and before suit to enforce it is begun, is not a necessary, though he is a proper, defendant.108 Where a purchaser before suit brought is not made a defendant, he may intervene and file an answer.109 One who buys pendente lite is not a necessary defendant.110 One who, by foreclosure of a deed of trust executed before the commencement of the work for which a mechanic's lien is claimed on leasehold property, has acquired an interest therein, should be allowed to become a co-defendant, and have his rights adjudicated in the same suit.111

§ 528. In case of the owner dying intestate before suit is begun, his heirs should be made defendants; 112 and, when the decedent was personally liable for the debt, his administrator may properly be joined as a co-defendant, since the personal estate is primarily liable for the debt.113 But no proceedings under the lien law can be maintained against executors unless it is in proof that title to the property on which the lien exists passed to them.1 And neither

114

Edwards, 29 N. J. Law, 468; McMahon v. Tenth Ward School Officers, 12 Abb. Prac. (N. Y.) 129; Tisdale v. Moore, 8 Hun (N. Y.) 19; Garland v. Van Rensselaer, 24 N. Y. Supp. 781, 71 Hun, 2; Wright v. Cowie, 31 Pac. 878, 5 Wash. 341.

108 Shields v. Keys, 24 Iowa, 298; McCoy v. Quick, 30 Wis. 521; Rice v. Hall, 41 Wis. 453; Lampson v. Bowen, Id. 484; Koenig v. Boehme, 14 Mo. App. 593; Colley v. Doughty, 62 Me. 501. The last case was an action of assumpsit.

109 Thaxter v. Williams, 14 Pick. (Mass.) 49; Shannon v. McDuffee, 2 Pa. Dist. R. 230.

110 Whitney v. Higgins, 10 Cal. 547. But one who was in possession of the land when the suit was begun, and who obtains and records a deed before service of process, is not a purchaser pendente lite. Franklin Sav. Bank V. Taylor, 23 N. E. 397, 131 Ill. 376.

111 Kling v. Construction Co., 4 Mo. App. 574.

112 Pifer v. Ward, 8 Blackf. (Ind.) 252; Simonds v. Buford, 18 Ind. 176; Guerrant v. Dawson, 34 Miss. 149; Belcher v. Schaumburg, 18 Mo. 189. Under the express provisions of the Iowa statute, in foreclosing a mechanic's lien against the estate of one deceased, the heirs need not be made parties. Welch v. McGrath, 10 N. W. 810, 13 N. W. 638, and 59 Iowa, 519.

113 Guerrant v. Dawson, 34 Miss. 149; Hughes v. Torgerson, 11 South. 209, 96 Ala. 346. In Iowa the administrator is the only necessary party. Shields v. Keys, 24 Iowa, 298.

114 Crystal v. Flannelly, 2 E. D. Smith (N. Y.) 583.

heirs nor administrators need be made defendants if the deceased parted with his title before he died.115

In foreclosing a mechanic's lien upon property, the title to which is divided between different owners, it is not necessary to name as defendant the owner of an interest on which no lien is claimed. Thus, in an action to foreclose a mechanic's lien against the assignee of a lease, it is not necessary to make the assignor a party defendant, though the lease and the assignment are not of record.116 In Louisiana a builder who is entitled to a privilege on an entire building, in virtue of a contract made with one only of the owners of the land, has a right to a decree recognizing that privilege, in a suit brought against only that one of the owners with whom he had contracted. 117 It has been held by a federal court that where a railroad company is in the hands of a receiver, and being operated by him, he alone is a necessary defendant in an action to foreclose a mechanic's lien under a statute which provides that any person or corporation "owning or operating" the railroad shall be made a party.11 And in an early case in Indiana it was held that a dormant partner need not be made a party defendant to a suit in chancery to enforce a mechanic's lien based upon a debt contracted by the active partner.119

Wife of Owner.

§ 529. Since dower cannot be affected by a mechanic's lien, a widow should not be made a party to the proceedings to enforce it, if she

115 Security Mortgage & Trust Co. v. Caruthers (Tex. Civ. App.) 32 S. W. 837.

116 Southard v. Moss, 20 N. Y. Supp. 848, 2 Misc. Rep. 121; Harrington v. Miller, 31 Pac. 325, 4 Wash. 808. A mechanic has a lien on the interest of a lessee in a house, for materials furnished, although one part of the house stands on ground leased of one landlord, and the other on ground leased from a different landlord; and the lien is not lost by failure to make both landlords parties to the suit, the second having been made a party by supplemental bill when his interest was disclosed. Laviolette v. Redding, 4 B. Mon. (Ky.) 81.

117 Johnson v. Weinstock, 31 La. Ann. 698.

118 Central Trust Co. of New York v. Chicago, K. & T. Ry. Co., 54 Fed. 598. 119 Goble v. Gale, 7 Blackf. (Ind.) 218.

has no interest in the premises other than her dower.120 And where property belongs to a married woman, subject to an estate by the curtesy in her husband, she has no such interest in the subject-matter of a suit to enforce a mechanic's lien against her husband's estate in the property as to entitle her to become a party to such suit, either on her own application or that of other parties, nor can her interest in the property be affected in such suit.121 But a wife who, in addition to her inchoate dower and homestead rights, has been awarded exclusive possession of the homestead pending a suit for divorce and alimony instituted by her, is a proper party to an action to enforce a mechanic's lien thereon; and where judgment by default has been obtained in such action against the husband alone, by collusion between him and plaintiff, she may become a party and contest the alleged lien. 122 And to a bill to establish a lien on property, to repair which the complainant advanced money to the decedent, and which has been sold under proceedings relating to dower, it is quite proper, and perhaps necessary, to make the purchaser, the widow, the administrator, and the heirs, defendants.123 It has been intimated that, in an action to enforce a mechanic's lien on the homestead, the wife should be made a party defendant, because she has an interest in the property,124 but she is not a necessary party if the lien attached to the property before it became a homestead.125 In an action to foreclose a mechanic's lien upon community real es tate, the wife is a necessary party defendant; but, where land is owned by husband and wife as tenants by the entirety, the wife is not a necessary party to a suit to enforce a mechanic's lien on the husband's estate in the land.127

126

120 Shaeffer v. Weed, 8 Ill. 511; Pifer v. Ward, 8 Blackf. (Ind.) 252.

121 Schnell v. Clements, 73 Ill. 613; Kirby v. Tead, 13 Metc. (Mass.) 149.

122 Weston v. Weston, 49 N. W. 834, 46 Wis. 130.

123 Gammel v. Young, 3 Iowa, 297.

124 Weston v. Weston, 49 N. W. S34, 46 Wis. 130.

125 Watkins v. Spoull, 28 S. W. 356, 8 Tex. Civ. App. 427.

126 Littell & Smythe Manuf'g Co. v. Miller, 28 Pac. 1035, 3 Wash. St. 480; Sagmeister v. Foss, 30 Pac. 80, 4 Wash. 320.

127 Washburn v. Burns, 34 N. J. Law, 18.

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Husband of Owner.

128

130

§ 530. In suit to enforce a mechanic's lien upon the land of a married woman, her husband is not a necessary party merely because he has an estate by the curtesy in the land,12 or because he acted as his wife's agent in making the contract on which the lien is based.12 But he is a proper party defendant in such a suit,1 especially when he is the trustee of his wife's statutory estate,181 or when it is alleged in the petition that he has some interest in the premises.132 And he is a necessary defendant in states where the general law directs that the husband shall be joined in all actions against the wife.133

Other Lien Claimants.

§ 531. When the lien is foreclosed by suit in equity, it is proper to make all other claimants of mechanics' liens on the same property parties defendant.13 But, under a statute providing that mechanics' liens shall be paid in the order in which the claims are filed, it is not necessary, in an action to foreclose a lien, to make the holders of subsequent liens parties defendant.185

128 Whitney v. Joslin, 108 Mass. 103; Hutchinson v. Preston, 2 Pittsb. R. (Pa.) 303.

129 Roman v. Thorn, 3 South. 759, 83 Ala. 443.

130 Scott v. Goldinghorst, 24 N. E. 333, 123 Ind. 268; Vorhees v. Beckwell, 37 N. E. 811, 10 Ind. App. 224; Greenleaf v. Beebe, 80 Ill. 520; Roman v. Thorn, 3 South. 759, 83 Ala. 443.

131 Roman v. Thorn, 3 South. 759, 83 Ala. 443.

132 Greenleaf v. Beebe, 80 Ill. 520.

133 Latshaw v. McNees, 50 Mo. 381; Fink v. Hanegan, 51 Mo. 280. 134 San Juan & St. Louis Mining & Smelting Co. v. Finch, 6 Colo. 214; Snodgrass v. Holland, Id. 596; Thielman v. Carr, 75 Ill. 385; Jones v. Hartsock, 42 Iowa, 147; Sharon Town Co. v. Morris, 18 Pac. 230, 39 Kan. 377; Kelly v. Gilbert, 28 Atl. 274, 78 Md. 431; Dewing v. Society, 13 Gray (Mass.) 414; Kenney v. Apgar, 93 N. Y. 539; Hovenden v. Ellison, 24 Grant (U. C.) 448. 135 Kaylor v. O'Connor, 1 E. D. Smith (N. Y.) 672.

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