McGraw v. Bayard

Citations

• 96 Ill. 146
• 1880 Ill. LEXIS 14

Syllabus

<p>1. Mechanic’s Lien—a chancery proceeding. A suit to enforce a. mechanic’s lien is substantially a chancery proceeding, and is governed by the chancery practice. This is so in respect to necessary parties.</p> <p>2. Same—limitation as against other creditors. No creditor under tbe Mechanic’s Lien law will be allowed to enforce his statutory lien as against any other creditor unless suit be brought for that purpose within six months after the payment for labor or materials shall have become due and payable; and unless the creditor whose rights are sought to be affected is made a party to the proceeding within the six months the lien can not be enforced as against him. although the suit may have been brought against others in time and he be subsequently made a party by amendment.</p> <p>3. Where the owner of property, after settlement of the amount, due for the building of houses on the same, made notes payable to his own order, secured by a deed of trust on the same property, which was duly recorded, and he negotiated and assigned such notes to raise a large sum of money, it was held, that the holder of those notes was a necessary party to a proceeding to enforce a mechanic’s lien for labor and materials in improving the property, and not being made a party thereto within six months after payment was due for the labor and materials, the proceeding as against him was barred.</p> <p>4. Same—waiver of—estoppel. Where, after the completion of certain houses on lots, and after trust deeds by the owner of the property had been executed and recorded, and where it was anticipated that the owner would succeed in negotiating a loan upon the faith of such trust deeds, the mechanics had a settlement with the owner, and having accepted the notes of the owner for a part of their claim, and sold and assigned such notes to third parties, they accepted from the owner a warranty deed conveying to them real estate at a price greater than the balance due them, to be in discharge of th