enforce the lien does not forfeit the insurance where the building burns before cessation of the suit.19

Statutory Provisions.

§ 8. The statutes of the different states on the subject of mechanics' liens are alike in principle, but variant in details. They are subject to constant change by the legislature, and it would be of little value to state the provisions of the existing laws on this subject, since they are in many cases different from the laws under which the decisions herein cited were rendered. Wherever a decision depends upon the wording of some particular statute, the material provisions of the statute will, as far as possible, be given, so that the reader will be able to see whether the decision is applicable under the laws of his state.

DIVISION II. ASSIGNABILITY.

In General.

9. The question whether mechanics' liens are assignable is one on which there is such a conflict among the decisions that it will be necessary to examine the cases by states.

ARKANSAS. In the absence of statutory permission, mechanics' liens are not assignable.20

CALIFORNIA. A perfected lien may be assigned by written instrument,21 but the mere right to acquire a lien is not assignable; hence, an assignment before the claim is filed is void.22

12 Iowa, 287. Where a mechanic's lien interest is by mutual mistake insured as a mortgage, the policy may be reformed by the court. Longhurst v. Insurance Co., 19 Iowa, 364. Where a policy insuring a mechanic's lien interest provides that suit must be brought within 13 months after the loss, a delay of more than that time caused by the impossibility of establishing the lien within such time does not avoid the policy, since the company, by issuing the policy, admits that the lien is an insurable interest, and therefore subject to the unavoidable delay incident to its judicial ascertainment. Stout v. Insurance Co., 12 Iowa, 371; Longhurst v. Insurance Co., 19 Iowa, 364.

19 Insurance Co. v. Stinson, 103 U. S. 25.

20 Dano v. Railroad Co., 27 Ark. 569.

21 Ritter v. Stevenson, 7 Cal. 388.

22 Mills v. Land Co., 32 Pac. 169, 97 Cal. 254; McCrea v. Johnson, 37 Pac. 902, 104 Cal. 224.

GEORGIA. There can be no assignment of a mechanic's lien before the claim is filed.23

ILLINOIS. In the absence of express legislative permission, a mechanic's lien is not assignable at law,24 at least not so as to allow the assignee to sue on it in his own name; 25 but where an assignment of the lien is made pending suit to foreclose it, the assignor has no further control over the suit, and cannot dismiss it,26 and the decree of foreclosure should be entered in the name of the assignor for the use of the assignee.27

INDIANA. Under a statute giving liens to "all persons" who shall do work or furnish materials, the lien is not a mere personal privilege, but is assignable in equity, so as to give the assignee a right. to foreclose it in his own name.28

IOWA. The statute expressly makes mechanics' liens assignable, but it is held that such assignment can only be made after the claim is filed, since before that time there is only a mere right to a lien.29

KANSAS. A statute making a railroad company liable for wages due from its contractor to his workmen in case it fails to take a bond from him does not make the security personal and nonassignable.30

KENTUCKY.

filed.31

Mechanics' liens are not assignable before claim

MAINE. In a late decision on the subject of logging liens it was decided that such liens were assignable and might be enforced by

23 Hooper v. Sells, 58 Ga. 127.

24 Cairo & V. R. Co. v. Fackney, 78 Ill. 116. But by the statute of 1895 it is expressly made assignable.

25 Phoenix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 621. But in the case of Friedman v. Roderick, 20 Ill. App. 622, the assignee was allowed to bring suit in the name of the assignor.

26 Major v. Collins, 11 Ill. App. 658.

27 Phoenix Mut. Life Ins. Co. v. Batchen, 6 Ill. App. 621.

28 Midland Ry. Co. v. Wilcox, 23 N. E. 506, 122 Ind. 84.

29 Brown v. Smith, 7 N. W. 401, 55 Iowa, 31; Langan v. Sankey, 7 N. W. 393, 55 Iowa, 52; Merchant v. Water-Power Co., 6 N. W. 709, 54 Iowa, 451. Before the passage of this statute it would seem that mechanics' liens were not assignable in Iowa. See First Nat. Bank v. Day, 3 N. W. 728, 52 Iowa, 680. 30 Missouri, K. & T. Ry. Co. v. Brown, 14 Kan. 557. 31 Frailey v. Railroad Co., 29 S. W. 446, 96 Ky. 570.

32

the assignee in the name of the assignor, the court intimating that such was the rule in regard to mechanics' liens on land.3 MICHIGAN. A mechanic's lien is assignable, so as to be enforced by the assignee in his own name.33

MINNESOTA. A mechanic's lien is not a personal right, and, after the claim is filed, may be assigned. In such case the assignee, as the real party in interest, may foreclose the lien in his own name.34 An absolute assignment, made before the claim is filed, destroys the assignor's right to file a claim in his own behalf, but the assignee in such case may acquire a lien.3

36

35

MISSISSIPPI. A mechanic's lien is assignable, and the assignee may enforce the lien in his own name.37

MISSOURI. After the lien has become fixed by giving notice or filing claim, the lien is assignable, and may be enforced by the assignee in his own name; 38 but an assignment of the debt before the claim is filed does not transfer to the assignee the right to file the claim.39

ΜΟΝΤΑΝΑ. While a lien is inchoate it is not assignable, and an assignment of the account does not pass the lien; but after the lien is perfected it is assignable, and passes by an assignment of the account.*

40

NEBRASKA.

After the claim is filed, a mechanic's lien is assignable, so as to vest the assignee with power to enforce it in his own name; 41 but a mere inchoate right to file a claim is not assignable,+2 and an assignee of such right has no power to file a claim therefor.*

32 Murphy v. Adams, 71 Me. 113.

43

42

33 Dudley v. Railway Co., 32 N. W. 884, 65 Mich. 655. Contra, Fitzgerald v. Presbyterian Church, 1 Mich. (N. P.) 243.

34 Tuttle v. Howe, 14 Minn. 145 (Gil. 113).

35 Davis v. Light Co., 59 N. W. 482, 57 Minn. 402.

36 Kinney v. Ore Co., 60 N. W. 23, 58 Minn. 455.

37 Kerr v. Moore, 54 Miss. 286.

38 Peters v. Railroad Co., 24 Mo. 586; Goff v. Papin, 34 Mo. 177; Jones v. Hurst, 67 Mo. 568; O'Connor v. Railroad Co., 111 Mo. 185, 20 S. W. 16.

39 Griswold v. Railway Co., 18 Mo. App. 52; Brown v. Railway Co., 36 Mo.

App. 458; O'Connor v. Railroad Co., 111 Mo. 185, 20 S. W. 16.

40 Mason v. Germaine, 1 Mont. 272; Davis v. Bilsland, 18 Wall. 659.

41 Rogers v. Hotel Co., 4 Neb. 54.

42 Goodman, B. & S. Co. v. Pence, 32 N. W. 219, 21 Neb. 459.

43 Noll v. Kenneally, 56 N. W. 722, 37 Neb. 879.

NEVADA.

In the silence of the statute in regard to the assignability of mechanics' liens, they are assignable, so as to give the assignee a right to sue thereon in his own name.**

NEW YORK. The lien given by the statutes authorizing mechanics' liens is, in general, a personal right, given to the mechanic for his own protection, and cannot be assigned or transferred before the claim is filed.45

OREGON. The right to perfect a mechanic's lien is a personal privilege, but the lien, when perfected by filing the claim, is assignable.46

RHODE ISLAND. In the absence of any statutory declaration on the subject, a mechanic's lien may be assigned, even while it is inchoate."

47

SOUTH CAROLINA.

Where a mechanic's lien is assigned after the claim is filed, the assignee may enforce the lien by suit in his own name.48

TEXAS. An assignment of the account carries the lien, and allows the assignee to foreclose it in his own name.1o

VIRGINIA. Mechanics' liens are assignable, and an assignee of the account may foreclose the lien in his own name.50

WASHINGTON. While the inchoate right of lien before the filing of the claim cannot be assigned, the lien becomes the subject of assignment after the claim is filed."1

44 Skyrme v. Occidental Mill & Mining Co., 8 Nev. 229.

45 Rollin v. Cross, 45 N. Y. 766; Roberts v. Fowler, 4 Abb. Prac. (N. Y.) 263. An assignment made after the lien is perfected may be enforced in the name of the assignor for the use of the assignee. Hallahan v. Herbert, 57 N. Y. 409. And a late case holds that a contractor may file his claim after assigning a note taken by him for the amount due, and may then assign the lien to the holder of the note. Linneman v. Bieber, 33 N. Y. Supp. 129, 85 Hun, 477.

46 Brown v. Harper, 4 Or. 89.

47 McDonald v. Kelly, 14 R. I. 335.

48 Oliver v. Fowler, 22 S. C. 534.

49 Austin & N. W. R. Co. v. Rucker, 59 Tex. 587; Austin & N. W. Ry. Co. v. Daniels, 62 Tex. 73.

50 laege v. Bossieux, 15 Grat. (Va.) 83.

51 Casey v. Ault, 4 Wash. 167, 29 Pac. 1048; Munholland v. Ault, 4 Wash. St. 170, 32 Pac. 294; Bell v. Same, Id.; Melchert v. Same, Id.; Wilson v. Same, Id.; Frank v. Same, Id.; Heffner v. Same, Id.; Dunbar v. Same, Id.; Felkner v. Same, Id.

WISCONSIN. In the absence of any statutory provision on the subject, a mechanic's lien is a personal right, and is not assignable.52 CANADA. The Ontario statute expressly provides that mechanics' liens may be assigned," and they are assignable even before registry of the claim.54

§ 10. In several of the states the statute expressly declares that mechanics' liens are assignable. Where this is the case, the question is, of course, at rest, so far as that state is concerned. But where the statute says nothing on that subject, the question of assignability depends mainly upon the point whether or not the lien has been perfected by filing the claim before the assignment is made. In nearly all the states the person claiming the lien is obliged, in order to perfect it, to file a claim, verified by affidavit, showing, among other things, the amount that is due to him for labor or materials furnished by him. If he has assigned the account before he files his claim, he cannot truthfully swear that there is anything due him, because the debt is then due, not to him, but to his assignee. But his assignee cannot truthfully swear that he has either done work or furnished materials, and it is only to those who furnish either labor or materials, or both, that a lien is given. It follows, logically, from this reasoning, that a mechanic's lien, before being perfected by filing a claim, is not assignable; and a majority of the decisions so hold."

55

§ 11. But, after the lien has once become fixed by filing the claim, there seems to be no reason why the lien should not be as assignable

52 Caldwell v. Lawrence, 10 Wis. 331; Tewksbury v. Bronson, 48 Wis. 581, 4 N. W. 749.

53 Bank of Montreal v. Haffner, 29 Grant Ch. (U. C.) 320.

54 Grant v. Dunn, 3 Ont. 376.

55 Dano v. Railroad Co., 27 Ark. 569; Mills v. Land Co., 32 Pac. 169, 97 Cal. 254; Hooper v. Sells, 58 Ga. 127; Merchant v. Water-Power Co., 6 N. W. 709, 54 Iowa, 451; Brown v. Smith, 7 N. W. 401, 55 Iowa, 31; Langan v. Sankey, 7 N. W. 393, 55 Iowa, 52; Davis v. Light Co., 59 N. W. 482, 57 Minn. 402; Fitzgerald v. Church, 1 Mich. (N. P.) 243; Griswold v. Railway Co.. 18 Mo. App. 52; Brown v. Railway Co., 36 Mo. App. 458; O'Connor v. Railroad Co., 20 S. W. 16, 111 Mo. 185; Mason v. Germaine, 1 Mont. 272; Goodman B. & S. Co. v. Pence, 32 N. W. 219, 21 Neb. 459; Noll v. Kenneally, 56 N. W. 722, 37 Neb. 879; Rollin v. Cross, 45 N. Y. 766; Roberts v. Fowler, 4 Abb. Prac. (N. Y.) 263; Casey v. Ault, 29 Pac. 1048, 4 Wash. 167; Caldwell v. Lawrence, 10 Wis. 331; Tewksbury v. Bronson, 4 N. W. 749, 48 Wis. 581. Contra, McDonald v. Kelly, 14 R. I. 335; Grant v. Dunn, 3 Ont. 376.