Other Incumbrancers.

§ 532. Any other incumbrancers, such as mortgagees, judgment creditors, and the like, should be made parties defendant, if the me chanic desires to have his lien declared superior to theirs; 136 but they need not be made parties if he is willing to enforce his lien. only on the equity of redemption, leaving their incumbrances superior to his lien.137 In other words, they are proper, but not necessary, parties. A mortgagee is not a necessary party defendant un der a statute requiring the "owner" to be made a party.13 It has been held in New Jersey that, in a suit on a mechanic's lien, only mortgages that have been recorded since the accrual of such lien can be brought into the controversy; hence prior mortgagees cannot be made parties.139 In a recent case in North Carolina it appeared that a subcontractor notified defendant of the amount due him from the contractor for materials furnished for a building which the contractor was erecting for defendant. The subcontractor demanded payment from both defendant and the contractor, but both refused payment. The day before the subcontractor filed his lien claim against the building, the defendant gave the contractor a note for a large sum owing the latter, and secured it by a deed of trust of all of defendant's property. On these facts the court held that, since the lien was superior to the trust deed, the trustee need not be made a party to a suit to enforce the lien, although it would be better practice to make him a defendant.140 It has been held in Iowa that where the lien is enforced by an action at law, and there is no right of redemption from an execution sale in such action, the

136 McLagan v. Brown, 11 Ill. 519; Lomax v. Dore, 45 Ill. 379; Sharon Town Co. v. Morris, 18 Pac. 230, 39 Kan. 1377; Hokanson v. Gunderson, 56 N. W. 172, 54 Minn. 499; Finlayson v. Crooks, 49 N. W. 398, 47 Minn. 74; Bassett v. Menage, 53 N. W. 1064, 52 Minn. 121; Foust v. Wilson, 3 Humph. (Tenn.) 31.

137 Portones v. Badenoch, 23 N. E. 349, 132 Ill. 377; Case Manuf'g Co. T. Smith, 40 Fed. 339.

138 Tompkins v. Horton, 25 N. J. Eq. 284; Howard v. Robinson, 5 Cush. (Mass.) 119.

139 Central Trust Co. of New York v. Bartlett (N. J. Sup.) 30 Atl. 583.

140 Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 14 S. E. 35, 109 N. C. 658.

holder of a mortgage recorded after the lien attached is not a necessary party to such action, since he will be bound by the execution sale, as a privy.141

142

In enforcing a mechanic's lien against property incumbered by an ordinary deed of trust in the nature of a mortgage, it is necessary to make both the trustee and the owner of the secured note parties defendant, if it is desired to cut out the trust deed.14 But the omission of the trustee does not invalidate a decree of foreclosure against the note holder, if the latter makes no objection on account of the nonjoinder.143 In case of a railroad mortgage to a trustee, securing a large number of bonds negotiable by delivery, and passing freely from hand to hand, so that it is difficult if not impossible for the claimant to learn their names, it is not necessary to make the bondholders parties to a suit to foreclose a mechanic's lien on the road, the trustee being deemed their representative.1** Where the jury find that an alleged mortgage was never in fact given, not making the alleged mortgagee a party is not reversible error, since the decree could not affect him.14: Under a statute declaring that in actions to foreclose mechanics' liens "the parties to the contract shall, and all other persons interested in the matter 141 State v. Eads, 15 Iowa, 114.

142 Clark v. Manning, 95 Ill. 580; McGraw v. Bayard, 96 Ill. 147; Bannon v. Thayer, 17 N. E. 54, 124 Ill. 451; Bayard v. McGraw, 1 Ill. App. 134; Phoenix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 621; Lamb v. Campbell, 19 Ill. App. 272; Columbia Bldg. & Loan Ass'n v. Taylor, 25 l. App. 429; Coe v. Ritter, 86 Mo. 277; McClair v. Huddart (Colo. App.) 41 Pac. 832.

In a recent New York case the complaint alleged that one A., as trustee, received a certain mortgage of the premises, which was duly recorded. A., as trustee, was not made a defendant, though he was joined individually. This was held to be a defect of parties defendant, under a New York statute, which provides that, in actions to foreclose mechanics' liens, plaintiff must make persons who have subsequent liens by judgment, mortgage, etc., parties defendant. Schillinger Fire-Proof Cement & Asphalt Co. v. Arnott (Sup.) 14 N. Y. Supp. 326.

143 Bennitt v. Mining Co., 7 N. E. 498, 119 Ill. 9; Portoues v. Holmes, 33 Ill. App. 312.

144 St. Louis & P. R. Co. v. Kerr, 48 Ill. App. 496.

145 Kelley v. Chapman, 13 Ill. 530. But a bill to enforce a mechanic's lien should make parties thereto the grantees under a trust deed of record, though made more than 20 years previously. Farmers' Bank v. Watson, 19 S. E. 413, 39 W. Va. 342.

in controversy or in the property charged with the lien may, be made parties, but such as may not be made parties shall not be bound. by any such proceedings," the omission to make a mortgagee of part of the property affected by the lien a party defendant does not operate to release the lien as to the part of the property covered by the mortgage, especially where, pending the suit, and before the trial, the interest of such mortgagee is acquired by one who is a party defendant to the suit.14 146 Persons acquiring liens other than mechanics' liens, after proceedings to foreclose a mechanic's lien have been commenced, are not necessary parties to the foreclosure.147 Attorneys for a railroad contractor, to whom the latter is indebted for legal services in acquiring the right of way, and who hold title deeds and other papers relative to the construction of the road upon which they claim a lien, are not proper parties to a suit by a subcontractor to foreclose a mechanic's lien upon the road.148 The grantee in a fraudulent conveyance may be treated as an incumbrancer, and made party defendant accordingly.149

Defendants in Subcontractors' Suits.

§ 533. In suits to foreclose the liens of subcontractors and of material men in the second degree, the same rules as to parties defendant apply as in suits by contractors. The owner of the land is a necessary party,1 150 and other lien claimants should also be made defendants.1 151 But other subcontractors, who have no liens because they have been paid in full, are not proper parties.152 According to most of the decisions the contractor is a necessary party defendant to a suit to enforce the lien of a subcontractor or a mate. rial man in the second degree, on the theory that he should have a

146 Badger Lumber Co. v. Ballentine, 54 Mo. App. 172.

147 Suydam v. Holden, 11 Abb. Prac. (N. S., N. Y.) 329, note; Harrington v. Latta, 36 N. W. 364, 23 Neb. 84.

148 Hilton Bridge Const. Co. v. New York Cent. & H. R. R. Co., 40 N. E. 86, 145 N. Y. 390.

149 Meehan v. Williams, 2 Daly (N. Y.) 367; Gross v. Daly, 5 Daly (N. Y.) 540.

150 Lombard v. Trustees, 73 Ga. 322; Harrison & Howard Iron Co. v. Council Bluffs City Waterworks Co., 25 Fed. 170.

151 Mehrle v. Dunne, 75 III. 239.

152 Meeks v. Sims, 84 Ill. 422.

right to dispute the account, and that his duty to the owner requires him to do so, if the account is incorrect.153 In a suit to enforce a lien for work or materials furnished a subcontractor, both the contractor and the subcontractor should be made defendants.154 A material man who has furnished materials to the contractor's assignee need not make the contractor a party to a suit to foreclose his lien.155 And where a contractor agrees with his material men that part of the sum due him for building a house shall be paid by the owner to the material men, and the owner assents, and the material men release the contractor from liability, the contractor is not a necessary party to an action by the material men to foreclose a lien on the house.1 156 If there is a firm of original contractors, it is not necessary to make more than one of the partners a defendant to a suit by a subcontractor.157 Where the statute expressly

153 Davis v. Lumber Co., 31 Pac. 187, 2 Colo. App. 381; Estey v. Lumber Co., 34 Pac. 1113, 4 Colo. App. 165; Sayre-Newton Lumber Co. v. Park, 36 Pac. 445, 4 Colo. App. 482; Union Pac. Ry. Co. v. Davidson (Colo. Sup.) 39 Pac. 1095; Lombard v. Trustees, 73 Ga. 322; Castleberry v. Johnston, 17 S. E. 772, 92 Ga. 499; Vreeland v. Ellsworth, 32 N. W. 374, 71 Iowa, 347; Tracy v. Kerr, 28 Pac. 707, 47 Kan. 656; Kerns v. Flynn, 17 N. W. 62, 51 Mich. 573; Northwestern Cement & Concrete Pavement Co. v. Norwegian, etc., Seminary, 45 N. W. 868, 43 Minn. 449; Ashburn v. Ayres, 28 Mo. 75; Wibbing v. Powers, 25 Mo. 599; Bombeck v. Devorss, 19 Mo. App. 38; Johnson-Frazier Lumber Co. v. Schuler, 49 Mo. App. 90; Sinnickson v. Lynch, 25 N. J. Law, 317; Lookout Lumber Co. v. Mansion Hotel & P. Ry. Co., 14 S. E. 35, 109 N. C. 658; Barnes v. Wright, 2 Whart. (Pa.) 193; Thomas v. Ownby, 1 White & W. Civ. Cas. Ct. App. § 1212; Austin & N. W. R. Co. v. Rucker, 59 Tex. 587. The following cases hold that the contractor is a proper, but not a necessary, party: Green v. Clifford, 29 Pac. 331, 94 Cal. 49; Yancy v. Morton, 29 Pac. 1111, 94 Cal. 558; Wood v. Transit Co., 40 Pac. 806, 107 Cal. 500; City of Crawfordsville v. Barr, 65 Ind. 367; Hubbard v. Moore, 31 N. E. 534, 132 Ind. 178; Sullivan v. Decker, 1 E. D. Smith (N. Y.) 699; Foster v. Skidmore, Id. 719; Lowber v. Childs, 2 E. D. Smith (N. Y.) 577; Osborn v. Logus (Or.) 42 Pac. 997.

154 Austin & N. W. R. Co. v. Rucker, 59 Tex. 587; Walkenhorst v. Coste, 33 Mo. 401; Union Pac. Ry. Co. v. Davidson (Colo. Sup.) 39 Pac. 1095.

155 Harrison & Howard Iron Co. v. Council Bluffs City Waterworks Co., 25 Fed. 170.

156 Leeper v. Myers, 37 N. E. 1070, 10 Ind. App. 314.

157 Putnam v. Ross, 55 Mo. 116; Hassett v. Rust, 64 Mo. 325; Fruin v. Mitchell Furniture Co., 20 Mo. App. 313; Foster v. Wulfing, Id. 85; Steinmann v. Strimple, 29 Mo. App. 478. In an action by a subcontractor to en

directs that suit shall be brought against the contractor and the owner, it cannot be brought against the owner and the administrator of the contractor.158 An agreement between contractor and material man in second degree, whereby the former agrees to make no defense to a suit on the latter's lien, is a fraud upon the owner, and therefore void, since it is the duty of the contractor to defend the rights of the owner. If the contractor assigns all his interest in the contract, his assignee is not a necessary party to a suit to foreclose a subcontractor's lien.160

159

DIVISION IV. PLEADINGS.

General Principles.

§ 534. There is no peculiar rule of pleading especially and only applicable to suits to enforce mechanics' liens.161 The pleadings are governed by the rules applicable to other suits of similar nature,162 except, of course, as they may be affected by any express directions of the lien statutes. Thus, pleadings are to be filed within the time limited by the practice act for other actions.163 And material facts discovered after suit begun may be presented by supplemental pleadings, as in ordinary actions.164 So, too, the general rules governing amendments to pleadings apply in lien suits.165 Where the statute directs that the suit shall be begun by notice "containing a statement of the facts constituting such lien," the no

force a mechanic's lien, the two original contractors, who were jointly liable, were impleaded as defendants, but service of the summons was made on but one of them. Held, that it was not error to deny the motion of the owner of the property to continue the action until service was made on the other contractor. Julius v. Callahan (Minn.) 65 N. W. 267.

158 Ayres v. Revere, 25 N. J. Law, 480.

159 Young v. Burtman, 1 Phila. (Pa.) 203.

160 Mulligan v. Vreeland, 34 N. Y. Supp. 990, 88 Hun, 183.

161 Benner v. Schmidt, 44 Ill. App. 304.

162 Gambling v. Haight, 5 Daly (N. Y.) 152; Duffy v. McManus, 3 E. D. Smith (N. Y.) 657; McGee v. Manufacturing Co., 7 S. C. 263.

163 Smith v. Maince, 1 N. Y. Code R. (N. S.) 230.

164 Gambling v. Haight, 5 Daly (N. Y.) 152.

165 McGee v. Manufacturing Co., 7 S. C. 263.

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