Kinzey v. Thomas
28 Ill. 502
Ill.
1862
Check Treatment
Breese, J.

This was a petition for a lien for materials furnished in the erection of a dwelling-house- and fencing on a part of the land described in the petition. An answer was put in by the principal defendant, the plaintiff here, which was stricken from the files, for the reason that it was not filed within the time fixed by the court. Thereupon the defendants who had not answered interposed a demurrer to the petition, which was overruled. We have only to do with the questions arising upon the demurrer to the petition. The demurrer was general, and to the merits, and in bar of the action, and brings before us the sufficiency of the petition under the statute. About this we cannot hesitate, as the defendants’ counsel admits that it was defective, for while it shows an agreement to furnish such timber and material as the plaintiff here should request, to be paid for within a reasonable time after delivery, it does not show that such request was to be made within three years, either as to the delivery or payment. We have so often decided, that the petition must make a case provided for by the statute, that it is only necessary to refer to the cases on that point. Cook, v. Heald, 21 Ill. 425; Same v. Vreeland, 21 Ill. 431; Same v. Rofinot, 21 Ill. 437; Senior v. Brebnor, 22 Ill. 252; McClurken v. Logan, 23 Ill. 80 ; Brady v. Anderson, 24 Ill. 112; Moser v. Matt et al., 24 Ill. 198 ; Burkhart v. Reisig, 24 Ill. 529; Phillips v. Stone, 25 Ill. 80; The Columbus Machine Manufacturing Co. v. Dorwin, 25 Ill. 169; Same v. Ulrich, 25 Ill. 169; Scott v. Keeling, 25 Ill. 358.

In some of these cases the defects are pointed out by special demurrer, but they can, if substantial, be reached as well by a general demurrer, as in this case. Eor the defects in the petition, the demurrer should have been sustained.

The record also shows, in the defense set up by the incumbrancers on this property, that the petitioner had taken additional security for the amount of his debt, by a chattel mortgage duly executed on certain personal property of the defendant Kinzey, to secure the payment of the note given by him for these materials. We have said in Brady v. Anderson, 24 Ill. 113, taking other security, either on property or that of individuals not parties to the transaction, would have the effect to discharge the lien. Here security was taken on personal property duly mortgaged; and the lien was discharged thereby. The settled doctrine is, that a vendor of land waives his lien wherever he takes distinct security for the payment of the purchase money, such as a deposit of stock, a pledge of goods, a mortgage on real or personal estate, or the responsibility of a third person, and we can see.no difference in principle, between such a lien and the lien of the material man; both are secret liens. Conover v. Warren, 1 Gilm. 501, and cases there cited.

As to the remaining point made, that the decree directed the sale of the land in thirty days, we have said in Link v. Architectural Iron Works, 24 Ill. 553, that as there is no redemption of premises sold under a decree to enforce a lien of this kind, the decree should fix a reasonable time within which the money is required to be paid, and in default of payment within the time, decree a sale of the premises, or a sufficient portion to pay the money for which .the decree is rendered. When the amount is large, the time should be longer than when it is small, but in no case should the sale he ordered at a shorter period than the lifetime of an execution at law.

This error is not obviated by the order for a special execution, for the life of that would be controlled by the time fixed by the court for the sale. For these errors, the decree is reversed, and the cause remanded.

Decree reverseé.