| Ill. | Apr 15, 1859
It is insisted that the petition, and contract upon which it is based, are insufficient to authorize a decree of the sale of the premises, to satisfy the claim of petitioners, because they do not specify any time within which the materials were to be furnished, and the labor performed. The first section of the eighth division of the “ Chancery Code,” (Scates’ Comp. 156,) provides that, “ Any person who shall by contract with the owner of any piece of land, or town lot, furnish labor or materials for erecting or repairing any building, or the appurtenances of any building, on such land or lot, shall have a lien upon the whole tract of land or town lot, in the manner herein provided, for the amount due to him for such labor or materials.” The second section extends the lien to work and labor performed, and materials furnished under the contract provided for in the first section, whether of the kind or quality of work, or amount to be paid, be specified or not: “ Provided, that the time of completing the contract shall not be extended for a longer period than three years, nor the time of payment beyond the period of one year from the period stipulated for the completion thereof.”
By the twenty-fourth section, the person holding such lien is prohibited from enforcing it, against or to the prejudice of any other creditor, or any incumbrance, unless suit is instituted within six months after the last payment for labor or materials shall have become payable. The third section provides, that when the money due for such labor or materials shall be unpaid, the lien may be enforced by filing a bill or petition in the Circuit Court of the county in which the land or lot shall be situated ; and upon a hearing, to obtain an order for the sale of the same, and to have the proceeds applied in discharge of the lien. The fourth section requires that the petition shall contain a brief statement of the contract upon which it is founded, the amount due thereon, with a description of the premises subject to the lien, together with all other facts and circumstances material to a full understanding of the rights of the parties. The second section limits the time of the performance of the contract to three years, and the payment for the labor and materials to one year from the time of its completion. This provision obviously requires that the time for its performance and the payment of the money shall be determined at the time when the contract is entered into, and not by alterations and changes which may be made in the agreement after it is entered into. And if there be no time fixed and agreed upon in the contract for the performance of the labor or furnishing the materials, within three years from its execution, and for the payment within one year from the completion of the labor or furnishing the materials, a lien would not attach. The lien is given by statute, and is in derogation of the common law, and is opposed- to common right, and should be strictly construed. The remedy is cumulative to the ordinary remedy given by the common law, and as it is a privilege enjoyed by one class of community, above that of all others, to be available, the party seeking to enforce it should bring himself within the terms of the statute. The courts are not justifiable in extending -its provisions beyond the cases provided for in the act, and if those provisions are not .sufficiently comprehensive, the legislature alone have the power to apply the correction.
Again, the petition should have averred a time when the contract was to be performed by the agreement, and the time when the money was to be paid, within the times severally limited by the act, as these facts are material to a proper understanding, by the court, of the rights of the parties. Logan v. Dunlap, 3 Scam. R. 189; Muller v. Smith, 3 ib. 543. And on the hearing, these allegations should be proved as averred, to entitle the party to a decree. Unless they are alleged, the other parties are not apprized of the ground of recovery, and the court is unable to determine' whether the labor was performed, the materials furnished, or the money was to be paid within the time prescribed, and whether the proceeding is commenced within six months after the last payment has become due.
In this case there is no allegation in the petition of a time fixed by the agreement when this work was to be performed, and that this suit was instituted within six months after the last - payment became due. The petition alleges that the work was commenced on the first of July, 1856, and had been completed before suit was instituted. The petition was filed, and summons issued in February, following. The payments were to be made as the work progressed, reserving fifteen per cent, of the amount until its completion and acceptance by the architect, when the remainder was to be paid. The petition fails to aver • when the work was completed, and the court could not judicially take notice, that it was impossible to have been completed within thirty days after its commencement. If the contract was performed and the work accepted by the first day of August, 1856, then this suit was not instituted within six months after the last payment fell due, and the petitioners would have no right to enforce their lien against the creditors and incumbrancers who are made parties to this proceeding. Nor does it appear, from the evidence, at what time the work was completed, nor does the contract specify any time for its completion. The petition and agreement, read in evidence, each appear to be insufficient to show the petitioners entitled to the decree.
We deem it unnecessary to examine the other assignment of 'errors in the case. But, for the errors already considered, the decree of the court below must be reversed and the cause remanded.
Judgment reversed.