
    Pryor vs. White &c.
    APPEAL FROM KENTON CIRCUIT.
    1. To secure the benefit of the lieu law of Covington, in behalf of mechanics, materials, men, &c., the suit must be instituted within one year from the completion of the work, or furnishing the materials.
    2. If the party, by contract, postpone the payment for the work or materials, or part thereof, beyond the period of one year, the lien is lost, so far as the payment cannot be demanded within the year.
    The facts of the case are fully stated in the opinion of the court. — Rep.
    
      Wm. B. Kinkead for appellant — •
    The only question presented for the decision of this court is — did the circuit court err in deciding that so far as the payments for work, &c., ha¡I been postponed, by contract, beyond the period of one year, the lien was waived or lost to appellant.
    This question for decision arises under the act of the legislature of 1834, (Sess. Acts, 684,) in reference to Newport, and a subsequent act, by which its provisions were extended to Covington. The first section gives the lien without restriction or limitation. The second section gives a remedy to enforce the lien by filing a bill within one year from the completion of the work, <fec., and another section provides that taking security defeats the lien.
    The suit was brought in this case within the year claiming judgment for all the notes then due, and asserting a lien for such as were not due.
    
      It is denied that by extending the day of payment beyond the end of one year, that the lien is lost. The object of the law in requiring the bill to be filed within the year, was that others might be apprised of the existence of the lien, and of the intention to assert it, that .an innocent purchaser may not be ensnared ; and placing it out of the power of the debtor to sell the property and evade the lien.
    The legislature gave the lien to secure the laborer in his just rewards, but public policy required that it should be speedily asserted, hence the requisition to sue within one year. In some instances it is required that notices be filed, &c. The commencement of suit is sufficient for that purpose. We ask a reversal.
    
      Bruce Portei for appellees—
    The right to enforce the lien claimed by the appellant, is, by the peculiar phraseology of the statute, confined to cases where the right exists to claim and enforce payment within the year from the completion of the work or furnishing the materials.
    If the mechanic, by agreement with the owner of the property, places himself in a condition not to demand payment within the year, and thereby place it out of his power to sue within the year, his lien is gone. In this case the appellant, by taking notes at twelve, eighteen, and twenty-four months, executed after the work done, and more than a year after the completion of the work, has lost his right to assert any lien, upon the property to that extent.
    The statute provides that taking security is a forfeiture of the lien, and shows an intention to waive the lien and rely upon the security taken. (11 B. Monroe, 337.) Taking notes in this case, payable beyond the year, shows incontestable evidence of intention not to look to the lien for payment.
    There is no ground to suppose that the legislature intended to authorize a suit to save a lien, and thereby make the court of chancery as substitute for the recorder’s office to publish liens. The bill provides that the bill to enforce the liens shall be filed within the year, not to be filed to give notice of the claim of lien. No bill can be filed to enforce a lien or collect money not due. The bill which claims that which the chancellor had no right to give was properly dismissed. He could not direct the continuance of a bill, which the plaintiff had shown no right to file. Filing a bill to enforce an immature obligation, is not sanctioned by principle or precedent.
    1. To secure the benefit of the lien law of Covington in behalf of mechanics, materials, men, &c., the suit must be instituted within one year from the completion of the work, or furnishing the materials.
    The purpose of the legislature was to give the lien for one year and no longer, and this court cannot, by construction, extend the protection for a longer period.
    February 1.
   Judge Simpson

delivered the opinion of the Court.

This action was brought in the Kenton circuit court to enforce a mechanics’ lien, for materials furnished and work done in building a dwelling house for the defendant White. For the balance due to the plaintiff on this account, the defendant, after the completion of the work, executed to him four notes, one due in six months, one in twelve months, one in eighteen months, and the other in twenty-four months from the time of their execution, each note being for the same amount.

The act of the legislature, under which the lien is claimed, after giving to certain persons performing labor or furnishing materials, a lien to the extent of the labor done and the materials furnished, provides, that any person having a lien under the act, may enforce the same by filing a bill in the circuit court, at any time within one year from the completion of the work or furnishing the materials.

The question that arises in this case is, did the plaintiff by extending the credit beyond the time allowed by the act for the enforcement of the lien, waive the lien with respect to the payments thus postponed, or did the lien still exist, provided he commenced his action within the year ?

2. If the party, by contract, postpone the payment for the work or materials, or part there of, beyond the period of one year the lien is lost, so far as the payment cannot be demanded within the year.

It was obviously the intention of the legislature to limit the duration of the lien, and to require its assertion by suit within the time prescribed. If no suit be brought within the year, the lien given by the statute is lost, there being no other mode allowed for its enforcement. The necessary consequence would seem to be, that if a party places himself in a position which renders him unable to bring a suit to enforce the lien, within the time limited, he thereby virtually waives it, having deprived himself by his own voluntary act, of the right to enforce it.

No action can be brought for the enforcement of a lien, before the debt becomes due, the payment of which it is designed to secure. An action may be previously brought to prevent a destruction or removal of the property to which the lien attaches, that might endanger the sufficiency of the security; but an action for the sole purpose of enforcing a lien cannot be maintained until the debt falls due.

The plaintiff brought this action within a year from the time of the completion of the work. But as only one of the notes fell due within the year, the lien could only be enforced to that extent. The bringingof the suit could not save the lien so far as the other notes were concerned, because no action could be maintained upon them until they became due; and also, because the plaintiff had, by agreeing to postpone their payment to a period that rendered the enforcement of the lien with respect to them, impracticable ; in effect waived the lien conferred upon him by the act, which he could not receive by claiming the benefit of it, in an action which he could only legally institute or maintain within the year, for the instalment which was payable within that period of time.

Wherefore, the judgment is affirmed.  