54 Iowa 451 | Iowa | 1880
The following authorities hold that where the contractor has completed his contract and filed his claim for a lien, he may assign both the debt and the lien: Tuttle v. Howe, 14 Minn., 145; Skryme v. Occidental Mill and Mining Co., 3 Nevada, 219; Davis v. Bilsland, 18 Wallace, 659. In Young Stone Dressing Co. v. Wardens St. James Church, 61 Barbour, 489, the assignment and lien were sustained, but not on account of any claim for a lien filed by the assignee, ■for the statement of the ease shows that the assignee upon the trial disavowed the lien by him filed as a ground of claim in the action. In Iaege v. Bossieux, 15 Grattan, 83, the contractor assigned his contract before the completion of the work, and it was held this assignment entitled the assignee to the contractor’s lien. We have been cited to no case, nor have we found any, where it has been held that the assignment of an installment due before the completion of the work carried with it to the assignee the right to file a claim for and to enforce a lien. The law in force at the time this assignment was made was chapter 8, of title 14 of the Code, as amended by chapter 44, Laws Fifteenth General Assembly. •The amendment is to section 2142, and provides that “ the lien herein given shall be transferable and assignable.” The •right to a lien arises when the labor is done or the material is furnished. But this right' the laborer or material man may waive. He may not desire to insist upon it and enforce it. Section 2133 provides what a subcontractor must do, and section 2137 provides what every other person must do who wishes to avail himself of the provisions of the chapter conferring the lien. If this is not done the lien continues to be of an inchoate and contingent character. Now the provision above cited from the amendment of the statute, that “ the lien herein given shall be transferable and assignable,” refers, we think, to the lien perfected by the filing of a claim therefor, and not to the mere inchoate right to a lien. But, however
Affirmed.