Hawk-eye. [volume] (Burlington, Iowa) 1843-1845, 1844-01-25

! A demurrer TO the petition was filed
and The following questions and obiec
lions raised:
l. The Petition does not sufficiently
state and sci forth what particular inter
est Smith held in the premises.
2. The suit was brought less than
twelve months after administration on
!; Smiths estate, contrary to the Stat
uie.
3. That Rodman had extinguished
his lien by taking of Smith his promis.
sorry note for the work. whereby Smith
became Individually bound for it.
4. That no bill of particulars of the
work done, was filed with the petition.
3. That there was a misioiuder oil
parties by making the widow and heirs
Of Smith and Mrs Litlleton, joint de-
PENDANTS with Admir-.
6. That petitioner had never demand
ed payment from the Admir-. of Smith.
Mrs Lltlieton, the mortgage of the
of the premises, on demurree object
ed:
Z. That the note to Rodman was
executed subsequent TO the mortgage
to her.
3. That it does not appear that the
personal estate of Smith had been ex-
hausted, SO as 10 show necessity of
selling the real estate.
8. That il does not appear that the
contract for the work on the house was
in writing nor that it was to be per-
formed in one year from the time il
was made.
Mrs Harriet Smith, the widow, by
her demurrer and plea objected
10. That the petitioner asks lien
on the whole of the premises and that
she as a widow is entitled TO one third
as her dover which she prays TO have
set off TO her.
The Court on consideration and af.
ter full argument, decided the various
questions raised, as follows:
l. 1t is not necessary for the petition
to set forth the precise interest the de-
PENDANT has in the premises lit is
however necessary to state that defend
ant has some title, right or interest in
the premises sought to be affected by
the lien.
3. A mechanics right to lien on
property on which he has expended
his labor in Improvements, is not de.
mand that will no. be affected by the
general insolvency Of the estate of the
owner, or the death of such owner.--
The mechanic may bring his action to
secure lien on the property wi,hou,
waiting until one year after administra-
ton is granted, as required in other
cases by the l0th Sec Of The 5lh Chap
ter of the Act respecting Wills &c.
3. The mechanic does not loose his
lien by taking a note for the amount
due him on settlement, for his work or
materials. When The work is done,
the money is 10 be paid and the limita-
ton begins to run. The parties. how
ever, may fix, by agreement, different
time OF payment, when the contract is
made or before the work is done. If
by taking note or otherwise. the time
OF payment is extended beyond that
liked by law, or by previous agreement
Of parties, the lien is lost. The limi-
talion of the action for mechanics lien
begins to run from the time the money
is to be paid.
4. If promissory for the work OF
materials is taken by the mechanic, he
need not file with his petition, bill of
particulars. The note may be filed
and petitioner must show that it was
given for the work done or material fur.
nshed.
s. Although the suit may be brought
against the Administrator alone, yet it
is competent for the mechanic, in his
petition. TO make the widow and heirs,
and membranes parties.
6. The petition need not set forth
that the mechanic has demanded pay
ment Of his claim from the Administra-
tor nor that lie has had notice of the
same.
z. A mechanics lien has a priority
over mortgage Of the premises, execu-
ted by the owner to another person.
since The performance Of the work by
the mechanic.
s. The mechanic need not seek pay
ment of his demand from the personal
estate of decedent in the hands of an
administrator before resorling TO his &C
ton TO secure a lien.
8. The contract for the work need
not be in writing, and it need not stip-
ulate for its completion in one year, in
order to proven, the operation of the
Statute of frauds.
10. If the widow is made a party.
she cannot, in this action, pray that the
lien may not operate on her dover;
nor can she come in and ask that her
dover may be set off to her unaffected
by the lien.
| The Court instructed the jury, when
the evidence was completed,