| Ill. | Apr 15, 1863
delivered the opinion of the Court:
The decree in this case ordered the sale of the church edifice, without the lots upon which it stood, which is assigned for error. The third section of the mechanics’ lien law, provides that the person holding such a lien, may, upon petition to the Circuit Court, obtain an order for the sale of the property upon which the improvements have been made. The fifth section of the act provides the manner in which all parties in interest shall be brought before the court. The twelfth section requires the court, on the trial of the cause, to ascertain the amount due each creditor, and to direct the application of the proceeds of the sale to each, in proportion to their several amounts..
' The fourteenth section declares that if any part of the premises can be separated and sold without damage to the whole, and if its value should be sufficient to satisfy the decree, the court may order a sale of that part. It will be seen that the fourteenth section only authorizes the property to he divided when it can be done without injury. The division ordered by this decree would necessarily involve many inconveniences, which could not but produce injury. If the building was sold independent of the ground upon which it stood, so long as it remained, it could not be used by the purchaser without trespassing upon the owner of the lots. He might require its removal, and upon a failure to do so, have it done himself, and if it could be removed, it would be attended with such expense as to greatly depress its value. To tear it down would destroy its value, except the worth of the materials, and to permit it to remain, would entirely deprive the owner of the soil of all means of enjoying the ground it occupies. These considerations would, no doubt, produce ¿ large dépression in the price on such a sale, and to such an extent as to render it improper.
The fifteenth section of the act provides that persons having liens not due, may become parties to the suit, and have them allowed, subject to a deduction of interest from the date of the judgment until they become due and payable. Hnder this provision, the mortgagee was properly made a party to the proceeding. And under this section the court was required to ascertain the amount of his lien, and decree its payment, although it was not due, and then have ordered the sale of the whole property. The fourteenth section only authorizes a division of the property, when it can be made without injury, and when the part which is separated will be sufficient to pay all of the claims, but not for the purpose of the payment only of a part of the claims. This decree was therefore erroneous in both of these respects.
The twentieth section of the act declares that no incumbrance upon the land, created before or after making the contract for improvements, under the law, shall operate upon the building erected, or materials furnished, until the persons performing the labor, or furnishing the materials, are paid. And upon questions arising between previous incumbrances and creditors under the act, it is provided that the prior incumbrance shall be preferred to the' extent of the value of the land, at the time of making the contract. It is also declared that the court shall ascertain by jury or otherwise, as may be required, what proportion of the proceeds of the sale shall be paid to the several parties in interest. It will be seen that the mortgagee had a first lien upon the lots, to the full extent of their value, if required to pay his debt. He also had a subsequent lien on the building, subject to the first lien of the workmen thereon. They in like manner had a prior lien on the edifice, and a subsequent lien on the lots. These were the rights, and this was the relation of the parties. Each had a right to have his debt satisfied out of the fund upon which he had a first lien; and if it was not sufficient, out of any surplus that might remain after satisfying that lien.
The court should therefore have, by a jury or master, ascertained the separate value of the lots, and of the building, and upon it decreed the payment of the several claims. By it the court should have ordered the payment of the mortgage out of the proportion of the fund arising from the lots, and the mechanics out of that arising from the building. If the lots were three-tenths of the value of the entire property, then that proportion of the money should be applied to the payment of the mortgage, and the other seven-tenths to the payment of the lien of the mechanics. If the whole of either fund were not necessary to pay the lien upon it, that lien should be paid in full, and then, if necessary, the simplus of that fund should be applied to the unpaid portion of the lien on the other fund. And if any surplus remained after paying all the claim, it would be paid to the owners.
The decree of the court below is reversed, and the cause remanded.
Decree reversed.