26 Ill. 421 | Ill. | 1861
By the terms of the contract under which this work was executed, the last payment was to be made on the first day of December, 18$T. By the same contract, the work was to have been completed on the first day of June, 1857, but the engine was not completed till the 22nd June, 1857, and the last of the castings and iron work were not delivered till the 23rd of April, 1858. At this time at least, if not on the first of December, 1857, the statute of limitations of six months, within which the bill had to be filed to enforce the lien as against these appellants, began to run. Six days after this, on the 29th day of April, 1858, another bargain was made between the complainant and Simpson, Wild & Co. for an extension of the time of payment for one, three and four months from that day, so that the last payment was thus extended from the first of December, 1857, to the 29th day of August, 1858. On the 12th of November, 1858, this petition was filed, and the question is, was it filed in time to save the lien under the statute ? In any possible aspect the limitation had commenced running when this agreement was made to extend the time of payment, at least six days before the work was all done, and the material all furnished, and the money all due; and as the statute declared, if the petition to enforce the lien was not filed within six months, at least, from that time, the lien was gone as to these appellants, who were mortgagees. Now could Simpson, Wild & Co., as to whom there was no limitation, make a contract with Moore, and without the consent of the mortgagees, to extend the time of payment, and thereby extend the statute of limitation from the first of June, 1858, to the 29th of February, 1859 ? That the rights of incumbrancers secured to them by a positive statute, could be thus trifled with, without their knowledge and consent, cannot be for a moment admitted. Even if this could have been done before the last payment became due, and consequently before the statute commenced running, which is by no means conceded, there is another well settled rule of law which would prevent it after that event. When a statute of limitation once commences to run, no subsequent event can arrest it—certainly none, unless it be the act or consent of the party whose rights are to be affected by it. As between themselves, the parties to the contract could modify it as they pleased, but not in such way as to affect the rights of others. Other parties had a right to take security on this land with reference to this lien, and the time when it would expire, and these could not be cut out by any agreement between other parties, which should have the effect to extend the time when the lien should expire.
The petition was filed too late as to these appellants, and as to them it should have been dismissed.
The decree is reversed. Decree reversed.
