Tracy v. Rogers

Citations

• 69 Ill. 662

Syllabus

<p>1. Allegations and pbooes. A party can not make one case by his pleading and obtain relief on another made by the proof.</p> <p>3. Evidence—answer to petition for mechanic's lien. The answer, under oath, to a petition for a mechanic’s lien, where the oath is not waived, so far as it is responsive to the allegations of the petition, must be received and treated as evidence.</p> <p>3. Mechanic’s lien—contract must be with owner of land. It is indispensable to a mechanic’s lien, that the party with whom the contrae! is made shall have some interest in the land upon which the building is to be erected or repaired, etc. This interest may be a fee simple, an estate for life, or it may be any estate less than a fee.</p> <p>4. Same—not for labor, etc., on property of a third party. If a mechanic performs labor upon a building in the temporary use of the party employing him, but which belongs to a third party, tlie statute gives him no lien.</p> <p>5. Same—statute relating to prior imeumbranc.es. The statute providing, where the land is incumbered by mortgage or otherwise at the time of making the contract, the owner’s equity of redemption may be sold, has no application where the equity of redemption is gone by sale under a deed of trust.</p> <p>6. Same—apportioning proceeds of sale as between lienholder and prior incumbrancer. Where the premises against which a’mechanic’s lien is decreed are subject to a prior incumbrance, the decree should ascertain what proportion of the proceeds of the sale shall be paid to the respective parties in interest. A decree of sale without this is erroneous.</p>