This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The right to acquire a lien is most frequently illustrated at Modern Law by mechanic's liens, though it is of course not limited to liens of this class. Whether the right to acquire a mechanic's lien is a part of the contract under which the work is done or the material is furnished, or whether it is a remedy merely, is a question upon which there is a conflict in authority. Some authorities hold that a right to the lien vests at least when the material is furnished,1 or according to some expressions of opinion, even when the contract is made,2 and that no statute passed thereafter can take away the right to such lien.3 Other authorities hold that the right to a lien is merely a remedy cumulative to the Common-Law right of action upon the contract,4 and that accordingly the right to acquire such a lien may be taken away by a statute passed after the contract is made and the services rendered or materials furnished thereunder but before the lien has become fixed.5 In any event, the courts will construe a statute, if possible, so as to preserve a right to a lien, given by a former statute, which is repealed by the later one.6 Even where the right to acquire a lien cannot be taken away, the method of enforcing it may be changed by a subsequent statute if some adequate means of enforcing it is left.7 Thus where the pre-existing law permitted a mechanic's lien to be taken on a building upon which work has been done or material furnished, and provided that such building might be sold separate from the land if the land was encumbered by a prior mortgage, a statute passed providing that the land and building may be sold together if the court finds that it is for the best interests of all parties so to do, the proceeds being so distributed as to secure the same relative priority as before may be applied, though the rights of the parties were fixed before the later statute was passed.8 On the other hand, the time within which a lien may be acquired may be changed by legislative enactment after the right to secure the lien exists, but before the lien is acquired, if a reasonable time is given after the passage of such statute to secure such lien.9 A subsequent statute may give a mechanic's lien where none existed before, since it is in this case clearly a remedy cumulative to the Common-Law right of action on the contract.10 However, a statute which gives additional rights to a subcontractor and which relieves him from filing a notice of his lien, has been held to impair the obligation of the original contract made before such statute was passed.11 This is especially true if the statute gives the subcontractors liens without regard to the price agreed upon between the owner of the building and the original contractor.12 So a statute giving to a corporation a lien upon its stock for debts or liabilities due to it from a stockholder is valid as to liabilities for subscriptions already incurred.13 So a statute, passed after A has died and his debts have become a lien on his realty, allowing executors to borrow money to pay decedents' debts and to give mortgages on decedent's realty is valid as to A's estate, as it merely changes the form of the lien.14
5 Cross v. Brown, 19 R. I. 220; 33 Atl. 147.
6 Wilson v. Brochon, 95 Fed. 82; Heath, etc.. Mfg. Co. v. Paint Co., 83 Fed. 776; Peninsular, etc., Co. v. Paint Co., 100 Wis. 488; 69 Am. St. Rep. 934; 42 L. R. A. 331; 76 N. W. 359.
7 Second Ward Savings Bank v.
Schranck, 97 Wis. 250; 39 L. R. A. 569; 73 N. W. 31.
8 Chipman v. Peabody, 88 Me 282; 34 Atl. 77.
9 Peninsular, etc., Works v. Paint Co., 100 Wis. 488; 69 Am. St. Rep. 934; 42 L. R. A. 331; 76 N. W. 359.
10 In re Rhoads, 98 Fed. 399.
1 Goodbub v. Estate of Hornung, 127 Ind. 181; 26 N. E. 770; Groes-beck v. Barger, 1 Kan. App. 61; 41 Pac. 204.
2 Spangler v. Green, 21 Colo. 505; 52 Am. St. Rep. 259; 42 Pac. 674; Hall v. Banks, 79 Wis. 229; 48 N. W. 385.
3 Spangler v. Green, 21 Colo. 505; 52 Am. St. Rep. 259; 42 Pac. 674; Goodbub v. Estate of Hornung, 127 Ind. 181; 26 N. E. 770; Weaver v. Sells, 10 Kan. 610; Kirkwood v. Hoxie, 95 Mich. 62; 35 Am. St. Rep. 549; 54 N. W. 720; Tell v. Woodruff, 45 Minn. 10; 457 N. W. 262; Warren v. Woodward, 70 N. C. 382; The Gazelle v. Lake, 1 Or. 120; Phillips v. Mason. 7 Heisk. (Tenn.) 61; Streubel v. Railroad Co., 12 Wis. 71.
4 Templeton v. Home, 82 111. 491; Smith v. Bell, 70 111. App. 490; Wilson v. Simon, 91 Md. 1; 80 Am. St. Rep. 427; 45 Atl. 1022.
5 Wilson v. Simon, 91 Md. 1; 80 Am. St. Rep. 427; 45 Atl. 1022.
6 " The evident intention of Sec. 24 of the act of 1862 was to save and preserve to the claimants all rights and liens acquired under preexisting laws which were then repealed, and which, but for such saving clause, would have been liable to be lost by such repeal." McCrea v. Craig, 23 Cal. 522. 525.
7 Phelps-Bigelow Windmill Co. v. Trust Co., 62 Kan. 529; 64 Pac. 63; Groesbeck v. Barger, 1 Kan. App. 61; 41 Pac. 204.
8 Red River Valley National Bank v. Craig, 181 U. S. 548 (affirming Craig v. Herzman, 9 N. D. 140; 81 N. W. 288).
9 Kerckhoff-Cuzner, etc., Co. v. Olmstead, 85 Cal. 80; 24 Pae. 648.
10 Teriipleton v. Home, 82 111. 491: Bolton v. Johns. 5 Pa. St. 145; 47 Am. Dec. 404. Contra, Smith v. Bell 70 111. App. 490.
11 Spangler v. Green, 21 Colo. 505; 52 Am. St. Rep. 259; 42 Pac. 674.
12 Hall v. Banks, 79 Wis. 229; 48 N. W. 385.
13 Tntwiler v. Tuskaloosa, etc., Co., 89 Ala. 391; 7 So. 398.
14 Murphy v. Bank, 131 Cal. 115; 63 Pac. 368.