18 Ill. App. 386 | Ill. App. Ct. | 1886
The defendants having pleaded in bar the limitation provided by section fifteen of the Statute of Limitations, and also that provided by section twenty-eight of the statute in relation to mechanics’ liens, the question is presented whether the case made by the pleadings and proof is one to which either of those statutes applies.
We are inclined to the opinion that the petitioners are not barred of their lien under the provisions of the general Statute of Limitations. So far as that statute is concerned, the right to enforce the lien would seem to continue until the debt itself is barred. Courts of equity follow the law in allowing the • defense of the Statute of Limitations, and so long as there is no bar at law there is none in equity.' It is clear that the debt is not barred, as the present suit was brought against the principal debtor within less than five years from the time the debt became due and payable. In point of fact it was brought within less than one month from the time the debt became due, and was pending continuously down to the date of the decree. The filing of the petition- against Gardner arrested the running of the statute as against the debt.
But the provisions of section 28 of the statute in relation to mechanics’ liens present questions of greater difficulty. That section, as it stood prior to the amendment of 1879, provided that mechanics’ liens should not be enforced as against or to the prejudice of any other creditor or incumbrance, unless suit should be instituted to enforce such lien within six months after the last payment for labor or materials should have become due and payable. This limitation, as held in Dunphy v. Riddle, 86 Ill. 22, can not be extended by implication so as to embrace or protect a purchaser of the property sought to be charged with the lien, and the amendment of 1879, passed several yeirs after the rights of the petitioners had accrued and after their petition had been filed, extending the same limitation to purchasers, can not, we think, be held to affect the rights of the parties to this suit.
The petition was filed November 26, 1873, but as then framed it sought to enforce a lien only on Gardner’s leasehold interest in lot one and the building erected thereon. No allusion was made in the petition in any form to lot four, but the allegation was merely that Gardner held a leasehold interest in lot one, and that the petitioner, at the request of Gardner, furnished the materials and labor in making certain repairs upon the building standing thereon, and the petition prayed merely for a lien upon and a sale of such leasehold interest. Such was the entire scope of the petition until November 15, 1881, at which time it -was so amended as to be made to apply to the north half of lot four.
The evidence discloses two incumbrances on the property executed by Gardner, the first being the trust deed for $30,-000 to Balcom, dated January 15, 1872, conveying the north half of lot four, and the second being the trust deed for $60,-000 to White, dated March 10, 1874, conveying the north half of lot four and the leasehold interest in lot one. The White trust deed was foreclosed April 6, 1877, and on such foreclosure all the property conveyed by that instrument was sold and conveyed by the trustee to Goodrich, who afterward conveyed the same to Cobb and Bradley, Goodrich having in the meantime, in order to protect his title, paid off the Balcom trust deed. It is clear then that Goodrich, as well as his grantees, Cobb and Bradley, so far as they took'title through the foreclosure of the White trust deed, or are entitled to be subrogated to the Balcom trust deed, occupy the relation of creditors and incumbrances, and are to be protected as such.
It is well settled that where a suit is brought to enforce a mechanic’s lien against the owner, and upon amendment of the petition a creditor or incumbrancer is made a party defendant, the suit will ‘not be considered as having been commenced against such creditor or incumbrancer until he is so made a party defendant. Dunphy v. Riddle, supra; Clark v. Manning, 4 Bradwell, 649; Bayard v. McGraw, 1 Id. 134; McGraw v. Bayard, 96 Ill. 146. The Balcom trust deed was executed before the petitioners’ lien accrued, and neither the trust deed nor the party secured was made a party to the suit within the six months limited by the statute. That security, then, is unaffected by this proceeding, and whatever rights Goodrich may have acquired by paying it off, must be held to be still superior to the petitioners’ lien. Having been compelled, in order to protect the title which he had purchased, to pay off the incumbrance, we think that, upon well recognized principles of equity,he is entitled, as against the petitioners, to be subrogated thereto, and that the same right is now held by his grantees. Lunt v. Stephens, 75 Ill. 507.
The other trust deed was executed after the original petition was filed, and therefore, as to all property within the scope of the petition, it must be regarded as a conveyance pendente lite. But the petition, as has already been remarked, did not then embrace the north half of lot four, and had no reference to that lot. It can not be regarded, then, as constituting at that time a suit instituted to enforce a lien on that lot, within the meaning of said twenty-eighth section.
We can not adopt the view suggested by counsel for the appellees, that so long as the building was in fact situated partly on lot one and partly on the north half of lot four, the averment in the petition that the repairs were made in the building, brought lot four within the scope of the petition, although no mention was made of that lot. There was no averment that any part of the repairs were made in that portion of the building situated on that lot, but the averment is, on the contrary,- that they were made in a building situated on the premises described, viz., lot one.
The petition certainly should have contained averments sufficient to constitute it a Us pendens as to the north half of lot four. As held in Lewis v. Mew, 1 Strob. Eq., 180, for a lis pendens to affect a purchaser, there must be something in the pleadings, at the date of the purchase, to point his attention to the property purchased, as the identical property in litigation. In Miller v. Sherry, 2 Wal. 237, it is held that a credit- or’s bill, to be a Us pendens, and to operate as a notice against real estate, must be so definite in the description of the estate, as that any one reading it can learn thereby what property is the subject of the litigation. The same rule substantially is laid down in Griffeth v. Griffeth, 9 Paige, 315; and in Edmunds v. Crenshaw, 1 McCord’s Ch. 252.
Here the petition made no mention of lot four, and eontained no suggestion showing either directly or inferentially that the repairs in question or any portion of them were made on that lot, and it prayed merely to have a lien established on the defendant’s leasehold interest in lot one. How could any one reading it have learned or been led to suspect that lot four was in any sense the subject of the litigation? So far as that lot is concerned, it is manifest that the suit must be regarded as having been commenced Movember 1, 1881, the date of filing the amendment to the petition.
As to lot four, then, the limitation prescribed by section twenty-eight of the mechanic’s lien law applies, and the petitioners’ lien must be held to be subject to the White trust deed. By the foreclosure of that security their lien, so far as it affected that lot, was cut off and wiped out, and became incapable of subsequent enforcement.
How stands their right to a lien as respects lot one ? At the time of the decree the term of Gardner’s lease of that lot had expired, and the lien, so far as it is attached to the term demised to the lessee, necessarily expired with it. It is now sought to extend the lien upon the fund arising under the covenant in the lease, which provides for the payment by the lessor to the lessee at the expiration of the lease, of the appraised value of the buildings and improvements placed on the lot by the tenant during his tenancy.
The statute provides that the lien thereby created shall extend to an estate in fee, for life, for years, or any other estate, or right of redemption, or any other interest which the owner may have in the lot or land at the time of making the contract. The only question is, whether the right secured to the tenant by the covenant in the lease to receive payment from his lessors for the buildings, etc., at the expiration of the tenancy, was an interest in the lot, within the meaning of the statute.
The right of a tenant to receive payment from the landlord, at the expiration of the tenancy, for fixtures placed on the demised premises during the term, arises from no rule of law or legal duty growing out of the relation of landlord and tenant. It is always a matter of express contract, and in the absence of such contract, the fixtures, at the expiration of the term, become, by operation of law, the property of the landlord without payment. We have then to look solely to the' terms of the covenant in the lease to determine the rights of the parties in this case.
It .should be observed that the covenant is merely that the appraised value of the buildings, etc., “shall be paid' for by said party of the first part,” but no mention is made of their assigns, nor is the covenant in any way made binding upon the assigns of the covenantors. In Hansen v. Meyer, 81 Ill. 321, a lease contained a clause binding the lessor to pay for certain fixtures and furniture not then in esse, but which the lessecwas to put into the building demised, but there was no provision that the covenant should be binding upon the assigns of the lessor, and- it was held, on the authority of Spencer’s Case, 5 Coke, 16, that the grantee of the lessor was not liable to the lessee on the covenant, and could not be compelled to pay him for such furniture and fixtures. The covenant was there treated as the mere personal covenant of the lessor, and not running with the land so as to be binding upon his grantee.
We are unable to see how, in the light of the foregoing authorities, or upon any recognized principle of law, the covenant can be held to have given to Gardner any interest in the land itself. He doubtless would have had his action against the Manierres, his lessors, for the value of his improvements, but that gave him no lien upon the premises capable of being enforced against the grantees of the Manierres, or any interest in rem to which a mechanic’s lien could attach.
The petitioners’ lien having expired with the leasehold estate, and they being unable to take anything by virtue of the covenant in the lease, they had no right to be decreed a lien as respects lot one, and their lien upon lot four having, as we have already seen, been barred by the statutory limitation, they were entitled to no relief, and the decree in their favor is erroneous.
The decree will be reversed with directions to the court below to dismiss the petition at the costs of the petitioners.
Decree reversed.
