ute to bring an action to enforce a lien, his right to enforce it is barred.1

155

Negligence in Prosecution of Suit.

§ 730. Even though suit to foreclose a mechanic's lien is begun in apt time, the lien may be lost by failure to prosecute the suit with reasonable diligence after it is begun. Thus, allowing four years to elapse after the issues are made up, without taking any further step in the case, is such negligence as to deprive the lien of its validity as against a subsequent mortgagee without notice; 156 and where a sci. fa. was issued in 1851, tried and defeated in 1852, and a new trial granted on conditions which were not performed until 1863, and the case then tried, the lien was held to be lost by the delay.157 But in one case. where a lien claim was filed September 8, 1845, and a sci. fa. thereon was issued December 10th of the same year, and no further steps were taken until July, 1850, and a verdict was obtained by the plaintiff October 28, 1850, it was held that the lien had not expired by reason of the lapse of five years between the filing of the lien and the verdict, as the sci. fa. was issued within the five years allowed by the statute for issuing the writ.158 Under a statute declaring that the lien should be discharged unless the lien claimant filed, within a specified time, an affidavit of commencing suit, the fact that suit was actually begun within that time does not keep the lien from lapsing if the affidavit is not filed until after such time has expired.159

155 Burns v. Phinney, 55 N. W. 540, 53 Minn. 431. 156 Ehrman v. Kendrick, 1 Metc. (Ky.) 146.

157 Ward v. Patterson, 46 Pa. St. 372. A mechanic's lien expires in five years if scire facias is not prosecuted to judgment. Garbian v. McGee, 7 Pa. Co. Ct.

R. 498.

158 Sweeny v. McGittigan, 20 Pa. St. 319.

159 Mushlitt v. Silverman, 50 N. Y. 360. But where the statute declared that the lien should continue "until the expiration of one year from the creation thereof, and until judgment rendered in any proceedings for the enforcement thereof," and that the lien in one year from its filing might be discharged by entry of the county clerk in the lien book that no notice had been given him of legal steps to enforce the lien, it was held that, where suit was begun within the year, the omission to notify the clerk of the suit till after expiration of the year did not cause the lien to lapse, where the clerk had made no entry, and that the clerk might refuse to make such entry unless the owner made affidavit that no suit had been begun. Paine v. Bonney, 4 E. D. Smith (N. Y.) 734.

§ 731. Under a statute providing that the claim filed by subcontractors "shall for one year from the commencement of such labor operate as a lien," and that "any person holding a lien under the provisions of the preceding sections may proceed to obtain judgment and enforce the same," it has been held that the action to enforce the lien need not be prosecuted to judgment within one year, if commenced within that time.160 But where the statute declares that the lien shall continue for a specified time, and that, if judgment should be obtained during that time, the judgment should preserve the lien, the lien is lost unless within the stated time a suit is not only begun, but prosecuted to final judgment.161 Under a statute limiting the lien to a year unless an order of court continuing the lien is docketed during the year, it was held that when the clerk declined to docket an order of court, continuing a mechanic's lien, on account of a clerical mistake in it, and the agent of the lienor took the order away, and failed to return it, the lien expired, notwithstanding the order. 162

DIVISION III. EXPRESS RELEASE OF LIEN.

In General.

§ 732. A mechanic may, of course, expressly release his lien; but a waiver or release in writing of a mechanic's lien, which does not appear to be supported by any consideration, is ineffectual.163 A mechanic who has a joint lien on several houses under a single contract may release half of them, and yet retain his lien on the remaining houses for half his account.1 But where lienors, hav

164

160 North Star Iron-Works Co. v. Strong, 21 N. W. 740, 33 Minn. 1.

161 Benton v. Wickwire, 54 N. Y. 226; Mathews v. Daley, 7 Abb. Prac. N. S. (N. Y.) 379, 38 How. Prac. (N. Y.) 382; Huxford v. Bogardus, 40 How. Prac. (N. Y.) 94; Schacttler v. Gardiner, 41 How. Prac. (N. Y.) 243; Grant v. Vandercook, 57 Barb. (N. Y.) 165, 8 Abb. Prac. N. S. (N. Y.) 455; People v. Lamb, 3 Lans. (N. Y.) 134.

162 Barton v. Herman, 8 Abb. Prac. N. S. (N. Y.) 399.

163 Abbott v. Nash, 29 N. W. 65, 35 Minn. 451; Katzenbach v. Holt, 12 Atl.

383, 43 N. J. Eq. 536; Benson v. Mole, 9 Phila. (Pa.) 66.

164 Hall v. Sheehan, 69 N. Y. 618; Reilly v. Williams, 50 N. W. 826, 47 Minn. 590; Meixell v. Griest, 40 Pac. 1070, 1 Kan. App. 145. Contra, Schulenburg v. Vrooman, 7 Mo. App. 133.

ing released some of a number of buildings to which they had furnished material, filed a claim against one of the unreleased buildings, and included therein an item for material furnished those released within six months prior to the time of filing, it was held that the charge for material furnished for the released buildings could not be included as an item in the claim filed against the unreleased buildings.165 An agreement between the receiver of a contractor. and a material man that his release of lien shall not prejudice his right to be paid out of the receiver's funds does not create a lien thereon.166 In a Maryland case it appeared that, the owner failing to make payments from time to time as agreed, it was mutually agreed that the contractor should stop work and receive pay for what had already been done; and he accordingly signed a paper informing the owner that he could not fulfill the contract, and, "in order that you may make other arrangements to proceed with your buildings, I hereby release you from further liability therein from this date." Afterwards the parties agreed that the amount due for work already done should be decided by arbitrators, but the owner failed to carry out this plan, promising instead to give his note for a certain sum. On these facts, the court held that, as the lien existed independently of the original contract, this paper signed by the contractor amounted only to a release of liability under the contract from its date, and not to a release or waiver of the lien.167 In another case it appeared that, by an instrument in writing, the object of which was to postpone liens for materials and labor to the lien of a mortgage about to be placed on the property, the proceeds of which were to be used in part to pay for such materials and labor, plaintiffs waived "all liens which they now or may hereafter have for work or labor done, or materials or fixtures furnished, by them" on the property. This was held to be a waiver of liens for materials and fixtures furnished under the then-existing contracts, but not of a lien for labor and materials under a new contract.168

165 Nickel v. Blanch, 10 Atl. 234, 67 Md. 456.

166 Griffin v. Booth, 38 N. E. 551, 152 Ill. 219, affirming 50 Ill. App. 217. 167 McLaughlin v. Reinhart, 54 Md. 71.

168 Lee v. Hassett, 39 Mo. App. 67.

169

§ 733. The statutory right of a mechanic or material man to enforce a lien upon real property may be released by an instrument in writing, supported by a money consideration paid by third parties, who have acquired property rights in the premises, though a sum less than the amount due is actually paid.1 And where a release of a mechanic's lien is executed, in which no one is named as releasee, the consideration being furnished by the person to whom it is delivered, the release is available to that person, and to no one else.170 If a mechanic release his lien on the promise of a subse quent mortgagee to indorse notes to be given for the lien debt, such mortgagee, if he does not indorse such notes, may be enjoined from pleading the release to an action at law on the lien, since, in the absence of the indorsement, the release is without consideration.11 When the owner requires of the contractor releases of liens from those who had furnished material or done work, a release of “all right of lien, title, and interest, for materials furnished," applies only to materials furnished prior to that time.172 But a release given to the owner, by the mechanics and material men, reciting that they remised, released, and forever quitclaimed "all manner of liens, claims, or demands whatsoever which we, or any or either of us,

169 Burns v. Carlson, 54 N. W. 1055, 53 Minn. 70.

170 Paulsen v. Manske, 18 N. E. 275, 126 Ill. 72, affirming 24 Ill. App. 95. 171 Katzenbach v. Holt, 12 Atl. 383, 43 N. J. Eq. 536.

172 Jepherson v. Tucker, 28 Atl. 610, 18 R. I. 429. Defendant, being applied to by his contractor for an advance beyond the estimate for the month, consent. ed to make one if he would procure releases from some of the subcontractors. Plaintiffs signed a release as follows: "We, the undersigned, accept W. F. B. [the contractor] for contract on plumbing at J. S. S.'s house." The contractor was then indebted to them in a small sum. He soon afterwards failed, and defendant finished the house himself, ordering plaintiffs to proceed with their work. Held, that the release applied only to the monthly estimate then due; and in any case defendant, having re-employed plaintiffs, was liable on his contract. Shropshire v. Duncan, 41 N. W. 403, 25 Neb. 485. A release of lien executed by only a portion of the laborers and material men, to which was an nexed an affidavit of the contractor showing that some of the laborers and material men had not joined in the release, binds only those who sign it, and hence a payment by the owner to the contractor of money due on the contract, on presentation of such release and affidavit, cannot operate as a bar to such claims as remained unreleased and unsatisfied. Magowan v. Stevenson (N. J. Sup.) 32 Atl. 1057.

now have, or might or could have, on or against the said buildings," releases liens for services or materials furnished in constructing the buildings after as well as before its execution.173 The fact that a lienor's son 174 or clerk 175 has been in the habit of signing releases of lien on payment of the lien debt does not validate releases signed by him when nothing is paid on the lien debts.

§ 734. If the statute provides a method by which the owner may compel the release of an invalid or lapsed lien, such release cannot be compelled by suit in equity.176 The complaint in an action for the penalty given by the Minnesota statute for refusing to discharge of record a mechanic's lien which had been adjudged void, failed to allege that there ever was such a lien, as it did not set forth the contents or character of the account or of the affidavit verifying it, or of the claim of lien filed for record, but showed only that some sort of verified account and claim of lien were filed. It was held that this was insufficient to show a cause of action.177 Under a statute providing that the owner of lands seeking to escape the effect of a lien for work thereon shall, after knowledge that the work is being done, post a notice on the premises that he will not be responsible for the same, personal notice, without that required by the statute, is of no effect.178

DIVISION IV. PAYMENT OF LIEN DEBT.

What Constitutes Payment.

§ 735. Since the only object of a mechanic's lien is to furnish security for debt, it seems almost superfluous to say that payment of the debt extinguishes the lien. Partial payment in like manner extinguishes the lien pro tanto.179 Whether a note given to the

173 Brown v. Williams, 13 Atl. 519, 120 Pa. St. 24. 174 Corr v. Greenfield, 19 Atl. 676, 134 Pa. St. 503.

175 Deacon v. Greenfield, 21 Atl. 650, 141 Pa. St. 467.

176 Spratt v. Nicholson, 3 Daly (N. Y.) 182; Fettrich v. Totten, 2 Abb. Prac. N. S. (N. Y.) 264.

177 Houlihan v. Keller, 26 N. W. 227, 34 Minn. 407.

178 Rosina v. Trowbridge, 17 Pac. 751, 20 Nev. 105.

179 Hopkins v. Conrad, 2 Rawle (Pa.) 316; Duncan v. Aaron, 6 Houst. (Del.) 566; Dengler v. Auer, 55 Mo. App. 548; Dennis v. Smith, 38 N. W. 695, 38 Minn. 494.