STORAGE RECEIPTS.

Warehouse and storage receipts, whether issued by a warehouseman who has complied with chapter 82 of the Code or one who has not, have the nature and effect given them at common law, and the bona fide holder for value of such receipt has priority over a claimant asserting a lien for supplies furnished after the transfer

1872-73, does not create a lien in favor K. LIEN OF WAREHOUSE AND of the furnisher of materials upon the property of the owner, but only a demand against him for what may, at the time of notice, etc., be due or unpaid to the contractor. But if prior to the furnisher of materials, proceed ing under and according to said fifth section, a creditor of the contractor acquires an execution lien upon what is due, or in arrear, from the owner to the contractor, and has proceeded and delivery of such receipt. Millto enforce his execution lien against hiser, etc., Co. v. Gallego Mills Co., the owner, by suggestion, and summons 101 Va. 579, 44 S. E. 760. And see issued thereon, and served on the generally, the title WAREHOUSES owner according to law, such execu- AND WAREHOUSEMEN. tion creditor, by virtue of his said lien, and proceedings by suggestion, etc., to enforce the same, is entitled, by operation of law, to be first paid his execution debt out of the money or debt due from the owner to the contractor. Stout v. Golden, 9 W. Va.

231.

I. LIENS AGAINST LEGAL AND

EQUITABLE TITLE.

If the owner of the full equitable estate in land causes building to be erected thereon, for the cost of which

a mechanic records a lien, such lien, by the terms of § 2483 of the Virginia Code, takes priority, as to both land and buildings, over all liens thereafter acquired on the lands of such owner, and also over all judgments thereafter recovered against the grantor of such owner holding the mere legal title to the land. Pace . Moorman, 99 Va. 246, 37 S. E. 911.

XIV. Waiver and Loss.

Accepaing Note Not Waiver of Lien. -Where a materialman, workman, laborer, mechanic, or other person, performs any labor or furnishes any material or machinery for constructing any house, mill, manufactory, or other building or structure, by virtue of a contract with the owner or his au

thorized agent, he shall have a lien, to secure the payment of the same, upon such house or other structure, and upon the interest of the owner of the lot of land on which the same may stand; and such lien will not be affected by the party claiming the same accepting negotiable notes for the

amount of his account, which notes are not made payable after the time fixed for bringing a suit to enforce the mechanic's lien. Cushwa v. Improvement, etc., Bldg. Ass'n, 45 W. Va. 490, 32 S. E. 259.

And while a bill of exchange or other security, which is not maturable until more than three months from the completion of the work, whether paid or not at its maturity, might be regarded as a waiver of the lien because the party after that period would have no right under the statute to assert it, yet the acceptance of such bill of security, which matures and is protested before the expiration of three

Substantial Completion Sufficient.If a builder has completed his work according to contract in all material, substantial features, his mechanic's lien Cushwa v. Im-is not lost merely because there provement, etc., Bldg. Ass'n, 45 W. are minor, unsubstantial, unimportant

stances, which should appear by the record. Pairo v. Bethell, 75 Va. 825.

are made to the rulings of the court, they may, it seems, be put into the record by bill of exceptions. All this is anomalous in a court of equity, but it results necessarily from the proceed

Sale of Machinery and Other Property May Be Separate. Where machinery of a permanent character, and which is a part of the realty, is sub-ing authorized, and a party has no abject to a mechanic's lien, and there is a deed of trust on the buildings and land, all of which is to be sold under one decree, the machinery and the remaining property may be sold in different parcels. Haskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S. E. 878.

solute right to a trial by jury of an issue joined in such a motion, it being in the nature of an equitable reedy, and the statute (ch. 163, § 8, Code, 1873) not applying to motions which partake of the nature of an equitable proceeding to enforce a charge on real estate. Pairo v. Bethell, 75 Va. 825.

XVII. Substitute for Mechanic's B. PARTIES.

Lien.

In General. In a suit in chancery by a lien creditor to subject real estate, it is the duty of the plaintiff to make all lien creditors, known to him, and yer v. Barker, 45 W. Va. 468, 31 S. all who are disclosed by the judgment

A deed of trust can not be made a substitute for a mechanics' lien. Law

E. 964.

lien docket or the records of the courts

XVIII. Pleading and Practice. of the counties in which the land to

A. METHOD OF ENFORCING
LIEN.

1. By Bill in Equity.

Where the object of the suit is to enforce an alleged mechanic's lien, the suit is one of equitable jurisdiction. Section 2484, Va. Code. Bailey Cons. Co. v. Purcell, 88 Va. 300, 13 S. E. 456; Pairo . Bethell, 75 Va. 825; laege . Bossieux, 15 Gratt. 83; United States Blowpipe Co. v. Spencer, 40 W. Va. 698, 21 S. E. 769.

And a court of equity, having taken jurisdiction of a suit to enforce a mechanic's lien, and having the parties before it, should proceed to the determination of all the questions between them. Rison v. Moon, 91 Va. 384, 22 S. E. 165.

2. By Motion.

Nature and Method of Proceeding.The proceeding by motion, under ch. 115, Code, 1873, is a summary remedy in equity, assimilated in some of its features to a proceeding at law; the motion may be heard without formal pleadings; the testimony is given viva voce before the court, and if objections

be sold is situated, parties to the suit. Farmers' Bank . Watson, 39 W. Va. 342, 19 S. E. 413.

Trustee and Cestui Que Trust.-A trustee and the cestui que trust must be made parties. Farmers' Bank v. Watson, 39 W. Va. 342, 19 S. E. 413.

Assignors of Contractor Proper, if Not Necessary. As the statute requires all parties in interest to be before the cou.t, the assignors of the contract are proper, if not necessary, and may be made such on their motion. Pairo v. Bethell, 75 Va. 825, 826.

Failure to Make Necessary Parties -Effect. If a lien creditor, in filing a bill to enforce his lien against real estate, neglects to make necessary parties thereto in accordance with the former decision of this court, all decrees entered will be reversed, and the proceedings thereunder annulled, and the bill will be remanded to be properly amended. Farmers' Bank v. Watson, 39 W. Va. 342, 19 S. E. 413.

Vendor Reserving Lien.—If A agrees to convey land to B and puts him in possession thereof, under an agreement that he will build a house thereon, and

and the suit must be commenced within six months from the time the money or last installment was due. Iaege v. Bossieux, 15 Gratt. 83.

Demurrable if Not Filed within

that then A will convey it to him, re-ceeding to enforce a mechanic's lien, serving a lien on the property, and B contracts with a mechanic to build the house and it is built, and a mechanic's lien claimed on the property and recorded under ch. 139, acts, 1872, § 3, p. 460, and afterwards the deed is made to the purchaser reserving the vendor's lien for the unpaid purchase money, the vendor's lien will have priority over the mechanic's lien. And if B is a married woman, the mechanic, in seeking to enforce his lien on her separate estate, ought not to make the vendor a party defendant, for the land can be sold only by a separate suit by the vendor to subject the corpus of the property to his lien. Charleston Lumber, etc., Co. v. Brockmyer, 18 W. Va. 586.

C. THE BILL. 1. In General.

A bill to enforce a mechanic's lien does not require very great particularity, because the account filed with the clerk, claiming the lien, itself has great effect. W. Va. Bldg. Co. v. Saucer, 45 W. Va. 483, 31 S. E. 965, 966.

2. Sufficiency.

Property. A bill brought to enforce mechanic's lien on certain property which distinctly specifies the lots, and states the legal title to be in certain individuals as trustees, sufficiently states the ownership of the property. Heffernan v. Harvey, 41 W. Va. 766, 24 S. E. 592.

Trustees. A bill brought to enforce mechanics' lien against certain individuals, with the words: "Trustees of, etc.," immediately following their name, in apposition, is sufficient to show that the suit is against them as trustees, without the insertion of the word "as" before "trustees." Heffernan v. Harvey, 41 W. Va. 766, 24 S. E.

592.

3. Time to Be Filed.

Where Money Due by Installments. -Under the Virginia Code, ch. 119, p. 510, a bill in equity is the proper pro

Statutory Period. In a suit to enforce a mechanic's lien claimed under an act of March 8, 1879, if it appears upon the face of the bill that the suit was not brought within six months from the time the plaintiff filed his account with the clerk, as required by the statute, the bill should be dismissed upon de

murrer.

Va. 783.

Phillips v. Roberts, 26 W.

A bill to enforce a mechanic's lien which does not show on its face that the suit was brought within the time. prescribed by statute is bad on demurrer. Savings Bank v. Powhatan Clay Co., 102 Va. 274, 46 S. E. 294. 4. Allegations.

Alleging Perfection of Lien.-A bill filed to enforce a mechanic's lien sufficiently alleges that the lien was perfected before the expiration of thirty days from the termination of the work, when it alleges that the lien was filed as provided for in the Code, §§ 2475, 2476, and the copy of the record of the lien exhibited with the bill shows that a part of the work charged for was done within thirty days of the recordation of the lien. Richlands, etc., Glass Co. v. Hiltebeitel, 92 Va. 91, 22 S. E.

806.

Alleging Failure to Pay Estimate.If contractors are compelled, by reason of their own insolvency, to abandon their contract, they can not sue for the work and labor performed, unless they allege and prove that either the owner, as a dependent condition to the continuance of the work, failed to pay the estimate of the architects when properly made, or collusively induced such architects in bad faith not to make such payment thereof and defeating such precedent condition. McConnell v. Hewes, 50 W. Va. 33, 40 S. E. 436.

office in the state a memorandum of the amount and consideration of his claim, that the memorandum should state that the services were rendered within ninety days. Overholt v. Old Dom. Mfg. Co., 98 Va. 654, 37 S. E. 307.

Unnecessary to Allege Approval of in which the company has its chief Contract by Contractor. In a declaration against the owner under the mechanic's lien law, it is unnecessary to aver that the account, alleged to have been furnished the defendant, was approved by the general contractor, or that the latter, after ten days' notice thereof, had failed to object to it. Va. Code, 1873, ch. 115; Acts, 1874-75, ch. 351, p. 137. Norfolk, etc., R. Co. v.

Howison, 81 Va. 125.

Allegation of Ascertainment of Account Due. And under the above facts, it is not necessary to allege that the account alleged had been ascertained to be due from the contractor to the subcontractor. Norfolk, etc., R. Co. v. Howison, 81 Va. 125.

When Allegations Denied Must Be Proved.-When the party who claims to have furnished material for the construction of a house proceeds by a bill in equity to enforce his lien against the property, and the owner of the property, in answer to the bill, denies that the lien has been properly obtained by pursuing the statutory requirements, denies that the material was furnished by the plaintiff, the al

Allegation of Time of Notice to Delegations of the bill must be sustained fendant. And it is not necessary to aver the time when the alleged notice was given defendant. Norfolk, etc., R. Co. v. Howison, 81 Va. 125.

Allegation That Subcontractor Owes General Contractor.-Nor that, when notice was given, the subcontractor owed anything to the general contractor. Norfolk, etc., R. Co. v. Howison, 81 Va. 125.

Unnecessary to Allege any Part Due. In a suit of a subcontractor against an owner for materials furnished the general contractor, it is unnecessary to allege that any part of the price agreed to be paid remained due to the latter from the owner when notice was given. Acts, 1874-75, § 5, P. 437. Roanoke Land, etc., Co. v.

Karn, 80 Va. 589.

as

by proof, in order to obtain a dec
for the sale of the property. Cent
City Brick Co. v. Norfolk, etc., R. Co.,
44 W. Va. 286, 28 S. E. 926.

Proceeding When Filed.-Where the chancery court takes cognizance of a suit, the object whereof is to enforce an alleged mechanic's lien, and a cross bill is filed, and all the evidence appears in the record, this court will review the action of the court below and decree according to equity and the right of the case. Bailey Cons. Co. v. Purcell, 88 Va. 300, 13 S. E. 456.

Allegation That Service Rendered within Statutory Period. It is not necessary under Va. Code, § 2486, amended by act of February 15, 1892, giving employees of manufacturing companies a lien for services on the Special Replication.-In proceedings property of the company, and provid- to enforce a mechanic's lien, an answer ing that no one shall be entitled to a claiming recoupment is not one for aflien unless within ninety days after firmative relief, and no special reply such services are rendered he shall file is necessary under ch. 125, § 35, W. in the office of the clerk of the county Va. Code; but is merely for defense,