And it has been held that the fact that the claim filed did not show the date of the first delivery of the materials for which the lien was claimed did not prevent the lien from attaching at that date.12 In many cases the statutes expressly declare that the lien shall date from the beginning of the work, while in others the result is due to necessary implication from the, language of the act. Thus, where the statute declares that a mechanic's lien shall be superior to any other lien that attaches after the commencement of the work, the lien necessarily relates back to the time when the work was begun. 13 The same result follows when the statute gives the mechanic a lien to the extent of the owner's interest at the time of the commencement of the work,14 or when it declares that if at the time the work is begun the person who causes the work to be done owns the fee the land shall be subject to the lien,15 or when it gives a lien against all persons except incumbrancers by judgment rendered or by instrument recorded before commencement of the work.18 The beginning of the work, being an open and notorious act, seems a more equitable time for dating the lien, so far as third persons are Vandevender's Case, 2 Browne (Pa.) 304; Green v. Williams, 21 S. W. 520, 92 Tenn. 220; Schultze v. Brewing Co., 21 S. W. 160, 2 Tex. Civ. App. 236; Oriental Hotel Co. v. Griffiths (Tex. Sup.) 33 S. W. 652; Teahen v. Nelson, 23 Pac. 764, 6 Utah, 563; Morrison v. Carey-Lombard Co., 33 Pac. 238, 9 Utah, 70; Cary-Lombard Lumber Co. v. Partridge, 37 Pac. 572, 10 Utah, 322; Charleston Lumber & Manuf'g Co. v. Brockmyer, 18 W. Va. 586; Rees v. Ludington, 13 Wis. 276; Crocker v. Currier, 27 N. W. 825, 65 Wis. 662; In re Dey, Fed. Cas. No. 3,871, 9 Blatchf. 285; In re Coulter, Fed. Cas. No. 3,276, 5 N. B. R. 64; Courtney v. Insurance Co., 1 C. C. A. 249, 49 Fed. 309; Central Trust Co. v. Richmond, N. I. & B. R. Co., 15 C. C. A. 273, 68 Fed. 90; McVean v. Tiffin, 13 Ont. App. 4.

12 Courtney v. Insurance Co., 1 C. C. A. 249, 49 Fed. 309.

13 American Fire Ins. Co. v. Pringle, Serg. & R. (Pa.) 138; Mellor v. Valentine, 3 Colo. 258; Keystone Min. Co. v. Gallagher, 5 Colo. 23; Allen v. Sales, 56 Mo. 28; Welch v. Porter, 63 Ala. 225; In re Coulter, Fed. Cas. No. 3,276, 5 N. B. R. 64; Charleston Lumber & Manuf'g Co. v. Brockmyer, 18 W. Va. 586; Davis v. Bilsland, 18 Wall. 659.

14 Morrison v. Carey-Lombard Co., 33 Pac. 238, 9 Utah, 70. It was held in this case that it made no difference that another section of the act declared that, where the subcontractor filed a notice of intention to claim a lien, his lien should attach from the time he filed such notice.

15 Brown v. Zeiss, 59 How. Prac. (N. Y.) 345.

16 Monroe v. West, 12 Iowa, 119.

concerned, than the time the contract is entered into, since that is an act of which third persons have no notice.

As to Subcontractors.

§ 54. Where the statute expressly declares that mechanics' liens shall be preferred to all other liens originating after the commencement of the building, the liens of material men and subcontractors relate back to the time the first work was done on the building, and not merely to the time the claimants began to do work or to furnish materials. Thus where a building is constructed under an entire contract between the owner and the original contractor, the liens of all subcontractors who furnished material or performed labor at any time during the construction attach, by relation, as of the date of the commencement of the work, for the reason that the original contractor's lien attaches at that time.18 And under a statute which provides that mechanics' liens shall have precedence over any mortgage made after commencement of work on any contract for the erection of any building, a subcontractor's lien dates from the time the principal contractor begins work on the building.19 It has also been held that under a statute giving a mechanic's lien for material furnished for the erection, alteration, or repair of any building, and for labor performed in putting up any fixtures or machinery in, or attached to, any such building, and declaring that such liens shall be preferred to all other liens or incumbrances which may attach to the land or buildings "subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery," etc., a lien for material (not fixtures or machinery) furnished for and used in the erection of a building dates from the actual commencement of the building, and not from the time the material is furnished and placed on the lot on which the building is subsequently erected. 20

17 Taylor v. Railway Co., Fed. Cas. No. 13,783, 4 Dill. 570; Dubois' Adm'r v. Wilson's Trustee, 21 Mo. 213; Apperson v. Farrell, 20 S. W. 514, 56 Ark. 640; Browne v. Smith, 2 Browne (Pa.) 230, note; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 14 S. E. 35, 109 N. C. 658.

18 Glass v. Freeburg, 52 N. W. 900, 50 Minn. 386.

19 Merrigan v. English, 22 Pac. 454, 9 Mont. 113.

20 Kansas Mortg. Co. v. Weyerhaeuser, 29 Pac. 153, 48 Kan. 335.

§ 55. There are, however, sore decisions that hold that the lien of a mechanic attaches when he commences to furnish material or to perform labor, and not at the beginning of the construction of the improvement on which he labors or for which he furnishes material.21 This has been held where the statute declared that the lien should relate back to the commencement of the work.22 Where the statute provides that on filing the proper account for a mechanic's lien the same shall operate as a lien for two years "from the commencement of the labor or the furnishing such materials," it has been held that the word "commencement" qualifies both "labor" and "furnishing," and the material man's lien dates from the time of the first delivery.23 Under a statute which gives a lien to every person performing labor or furnishing material to be used in the construction of any building for the work done or material furnished by each, respectively, it has been held that a material man can claim a lien only from the time he commenced to furnish material for the building; and, if such time is subsequent to the creation of a mortgage lien, of which he has notice, his claim for material is subject thereto, though the building was in process of construction when the mortgage was executed, and though the contractor's lien may be prior to the mortgage, 24

When is a Building Begun?

$56. In this connection, the question, when is a building begun? has more than once come before the courts. The answer usually is that the building is begun when the first permanent work is done on the land. Thus it has been held that the excavation for the foundation or cellar is the commencement of the building, within the meaning of the mechanic's lien law. This excavation is the costructive notice intended by the legislature to all who might propose either to purchase or to acquire liens upon the property; and it makes no difference that the excavation is made by the owner himself, or under his direction, and not under a contract.25 In other cases it

21 Henry & Coatsworth Co. v. Fisherdick, 55 N. W. 643, 37 Neb. 207; Welch v. Porter, 63 Ala. 225.

22 Barber v. Reynolds, 44 Cal. 519.

23 Courtney v. Insurance Co., 1 C. C. A. 249, 49 Fed. 309.

24 Mechanics' Mill & Lumber Co. v. Denny Hotel Co. (Wash.) 32 Pac. 1073. 25 Mutual Ben. Life Ins. Co. v. Rowand, 26 N. J. Eq. 389; Pennock v. Hoover,

27

is said that attaching to the land any material used in constructing a building is the commencement of such building.26 But merely placing the materials on the ground is not a commencement of the building, though it has been held in one case that making window frames which were afterwards used in a house was the beginning of the house where such frames were made before the cellar was excavated,28 and in another that when the materials for the erection of a building are bought and taken on the land, and are there mortised and prepared for erection, the building is begun.29 Under a peculiarly worded statute, which made the lien date from the commencement of the building or "the laying of stock," it was held that the term "laying of stock" meant the beginning of work by placing the materials on or adjacent to the land, and that work done on the materials away from the land did not constitute a beginning of the building or a laying of stock.30 In some cases the lien is made to date from "the visible commencement" of the building,31 and it has been said a building is begun when the permanent work on the ground has progressed so far as to inform reasonable observers that it is designed for the erection of a building.3 The commencement of a building has also been defined as the first labor done on the ground which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction.33 But laying off the ground for buildings and driving pegs in the ground to mark the location does not constitute a commencement of the building. Neither does clearing the ground of stumps and other obstructions, that would render insecure the foundations to be built, even though such work was included in the contract for the construc

34

32

5 Rawle (Pa.) 291; Bassett v. Swarts, 21 Atl. 352, 17 R. I. 215; Kansas Mortg. Co. v. Weyerhaeuser, 29 Pac. 153, 48 Kan. 335; Thomas v. Mowers, 27 Kan. 265; Parrish's Appeal, 83 Pa. St. 121.

26 Chapman v. Wadleigh, 33 Wis. 267; Jessup v. Stone, 13 Wis. 466.

27 Kansas Mortg. Co. v. Weyerhaeuser, 29 Pac. 153, 48 Kan. 335.

28 Nichols v. Culver, 51 Conn. 181.

29 James v. Van Horn, 39 N. J. Law, 363.

30 Farmers' Bank v. Winslow, 3 Minn. 86 (Gil. 43); Knox v. Starks, 4 Minn.

20 (Gil. 7).

31 Miller v. Stoddard, 56 N. W. 131, 54 Minn. 486.

32 Jacobus v. Insurance Co., 27 N. J. Eq. 604. 23 Conrad v. Starr, 50 Iowa, 470.

84 Brooks v. Lester, 36 Md. 70.

47

the lien of the mechanics employed by the purchaser only related back to the time when he resumed the work. And where the owner sells land on which is an unfinished building, on which he has ceased work, and for which, so far as completed, he has fully paid, and his vendee resumes work six months afterwards, and completes the building, mechanics' liens for work done in completing the building only relate back to its recommencement by the vendee.48

Delivery of Materials.

§ 60. Materials for a building are usually said to be furnished when they are delivered on the premises on which they are to be used.1o Thus where the statute gives the material man a lien from the time the material commenced to be furnished, his lien does not attach at the date that he commenced preparation of the material in another state, but at the time when he delivered it at the building as required by his contract.50 But where the contract under which materials are furnished makes the material man's place of business the place of delivery, then he may properly be said to have furnished the materials when he has them ready for delivery at his shop.31 As a general rule, materials are held to be furnished when they are delivered at the building, and not at the time they are actually used in its construction; 52 but it has been held in Canada that, while material men in the first degree have a lien from the time they furnish the materials, material men in the second degree do not acquire a lien until the materials are incorporated into the building.53 Where materials are furnished from time to time, for a particular purpose, as, for instance, for the erection of a house, and the dates are so near each other as to constitute one running account, the lien dates from the time when the first article was supplied, although,

47 Stevenson v. Stonehill, 5 Whart. (Pa.) 301.

48 Fordham's Appeal, 78 Pa. St. 120. This was a contest between the holders of mechanics' liens and judgment creditors.

49 Wentworth v. Tubbs, 55 N. W. 543, 53 Minn. 388.

50 Mechanics' Mill & Lumber Co. v. Denny Hotel Co. (Wash.) 32 Pac. 1073, following Williams v. Chapman, 17 Ill. 423.

51 Tibbetts v. Moore, 23 Cal. 213.

52 Milner v. Norris, 13 Minn. 455 (Gil. 424). 53 Bunting v. Bell, 23 Grant (U. C.) 584.