
    Samuel A. Ambrose v. Lorenzo D. Woodmansee and John Wolf.
    1. Where the holder of a mechanic’s lien, within the two 'years for which his lien remains operative, commences an action on his account, to obtain a personal judgment for the amount thereof, such lien is, by the provisions of the statute creating it, continued until the action is determined, and until the judgment obtained by the plaintiff is satisfied.
    2. The premises charged with such lien may be subjected to the satisfaction of the same, as against a purchaser in good faith, who bought without actual notice of plaintiff’s claim, pending the action thereon, and after the expiration of said period of two years.
    Error to the District Court of Montgomery county.
    Defendant, Woodmansee, owned real estate in Montgomery county, and employed Ambrose, the plaintiff, to plaster a house which he built thereon.
    Ambrose did the work, and within four months thereafter proceeded to obtain alien upon the property for an unpaid balance of about $160, due him under his contract, by filing his account for work and materials, properly verified, with the county recorder, pursuant to the requirements of the statute; and causing the same to be recorded in the mechanics’ lien book. This was done July 21, 1865. On the same day he brought an action before a justice of the peace of the same county against Woodmansee on said account, and on the trial recovered a judgment against Woodmansee only for $85.45.
    Plaintiff' appealed the cause to the Court of Common Pleas, where he recovered a judgment, April 7, 1869, for the sum of $197 and costs, taxed at $121. On this judgment he caused execution to issue, which was returned by the sheriff unsatisfied. In the meantime, in August, 1867, Woodmansee sold and conveyed the premises to the defendant, Wolf.
    Plaintiff thereupon instituted the proceedings now under review by commencing an action in tbe Court of Common Pleas of Montgomery county, against the defendants, Woodmansee and Wolf, setting up all tbe foregoing facts in his petition, and seeking to subject tbe premises to tbe satisfaction of his said judgment, in virtue of bis alleged lien.
    Wolf answered, averring that be purchased and paid for tbe premises in good faith, in August, 1867, without any knowledge of plaintiff’s claim, and that tbe plaintiff did not, within two years from tbe filing of bis lien bring an action to enforce tbe same, though be admitted that suit was brought and judgment obtained as stated in tbe petition..
    To this answer plaintiff demurred, as not stating facts sufficient to constitute a, defense. Tbe court overruled plaintiff’s demurrer, and dismissed bis petition at bis costs.
    On petition in error filed in the District Court for tbe reversal of this judgment, it was subsequently affirmed by that court, and plaintiff' now asks a reversal of both these judgments.
    
      J. A. Jordan, for plaintiff' in error :
    Tbe original action was brought under section 8 of tbe mechanics’ lien law (S. & C. 838).
    Having obtained a judgment under this statute for tbe amount claimed, a bill in equity was filed under tbe act of March 25,1851 (S. & C. 837).
    These laws were both passed before tbe code, and at a time when the distinction existed between judgments at law and decrees in equity; and at tbe time tbe statute wrs passed containing said section 8, it was intended that a judgment at law should be obtained, and it was doubtful whether a bill in equity could be maintained. Ziegler v. Seibolt, 3 West. L. J. N. S.
    1. Section 8 provides for a suit for a judgment at law.
    2. Tbe act of 1851, in giving tbe right to file a bill in equity, makes it an. “additional ” remedy, and concludes, “ anything in said act to the contrary notwithstanding.”
    The statute of 1851 did give the “ additional” remedy of a suit in equity. But undoubtedly this additional remedy was only necessary where at the time the action was brought there was some equitable necessity for it, such as marshaling liens, adjusting equitable questions, etc., and not when a suit at law for judgment and execution on that judgment would have availed to collect it. This was the case when the original suit was brought, for then the rights of Wolf had not intervened. And even if some equitable question did make it proper to go into a court of equity, there was no. necessity of doing so to save the bar of the statute; for the statute of 1843, sec. 8, provides for suit for judgment, and that after the suit for judgment was brought “ the lien shall continue until such suit or suits be finally determined and satisfied.” And the statute of 1851, while it gives equitable jurisdiction, gives it simply as an additional remedy.
    But counsel for Wolf claim that because section 8 provides that judgment may be sought “according to the course of legal proceedings in like eases,” that a suit must be brought in equity under that section in the first instance. Mr. Hitchcock thought otherwise, and the fact that equitable jurisdiction was conferred in 1851, as an additional remedy, “ anything in said act to the contrary notwithstanding,” shows like cases did not mean equity. Like cases meant just as the statute says. Like cases for judgment which could be enforced the same as in cases where any judgment was obtained on which an execution could issue. Of course after judgment, even under the statute of 1843, equity would take jurisdiction if a clear title could not be given under sale on execution.
    If it were necessary to go into equity in the first instance to save the bar, then a mechanic who did work could not perpetuate his lien under section 8 by suit before a justice of the peace, but would have to employ a lawyer and file a bill in equity in a court of record. This certainly was not intended. But it is claimed that if a mere judgment on the account would perpetuate the lien and be a lis pendens as to other parties, then an action could be brought in any other county in the state, and it would perpetuate the lien.
    I think this an overstrained construction. The term, “ according to the course of legal proceedings in like cases,” would apply to meet such a case. Of course it should be such a judgment as could be enforced by execution against the property, and if suit were brought in another county, execution would have to be sent to the county where the land lies. The law does not require a suit to make it notice, but only to perpetuate the notice given by filing the lien. This is all the notice required; and "Wolf could have discovered by going to Ambrose whether suit had been brought. The mechanics’ lien record showed that Ambrose claimed a lien; this was the notice the law required, and was notice enough to put Wolf on inquiry. This was the Us pendens.
    
    
      ■ It is argued that section 8 requires a suit upon the account, and for judgment upon it, and that this account is a written account giving a description of the property, and filed with the recorder. Certainly “ for judgment,” but not to enforce by any equitable decree the lien, and hence the suit is only on the account for judgment, without any reference to enforcing it as a lien by decree in equity.
    
      JBLauk &; McMahon, for the defendant in error, John Wolf:
    Our claim is that a mechanics’ lien is barred in two years after the completion of the labor, unless an action is commenced within two years to enforce the lien, in which case the lion continues until the case is determined and the money paid. Secs. 7 and 8.
    I. The mechanic’s lien is the creature of law. The statute creates and regulates it, and points out the method of enforcing it. Prior to the amendatory act of March 25, 1851 (1 S. & C. 837), the proceeding Avas regarded as purely statutory, and the remedy legal. This is plainly inferrable from the language of the amendatory act, and from the fact of its passage; and it was held in the Supreme Court on the circuit that there was no remedy in chancery, because the statute gave a legal remedy; not merely on the account personally, but against the property. Mushlitt v. Silverman, 50 N. Y. 360.
    II. The action contemplated in section 8 of the lien law is not a mere personal action against the debtor upon the debt; it is -an action upon the lien, instituted for the purpose of enforcing the claim against the property. To amount to a Us penclens within the meaning of the lien law and'the principles of natural justice, it should contain evidence that it was a claim against property as well as against the person. Otherwise, snares would constantly be laid for the innocent.
    III. The statute providing for liens, both upon real and personal property, provides for their enforcement “ according to the course of legal proceedings in like cases.”
    But in any proceeding to enforce against real estate, the action to enforce the lien can only be brought in the Court of Common Pleas, without reference to the amount. Proceedings against land have never boon allowed, so far as our information extends, before magistrates. If a judgment is obtained, and there are no goods and chattels, a transcript must go up to the Common Pleas. If an attachment is issued and levied upon real estate, it must be certified up. And such has been the uniform policy of the state.
    Under this view, section 8 requiring proceedings to be as in like cases, the action should be in the Common Pleas Court of the county where the property is situated. Bowers v. Pomeroy, 21 Ohio St. 184.
    IY. The doctrine of notice pendente lite does not apply in a case where the court had no jurisdiction of the thing in controversy, as where the court has jurisdiction of the person, but not over the land in controversy. Carrington v. Bronts, 1 McLean, 167; Phillips on Liens, ch. 34.
   Scott, Chief Judge.

The lien which the plaintiff sought to enforce in the court below is given by the “ act to create a lien in favor of mechanics and others in certain cases,” passed March 11,1843 (S. & C. 833). The 7th section of that act provides for the manner of making out, and filing in the office of the recorder of the proper county, an account, in writing, of the labor and materials furnished for which a lien is sought; and declares that the account so made and filed shall, for two years after the completion of such labor, or the furnishing of such materials, operate as a lien, etc. The 8th section reads as follows: “ That every person or persons holding such lien, may proceed to obtain judgment for the amount of his or their account thereon, according to the course of legal proceedings in like cases; and when any suit or suits shall be commenced on such accounts, within the time of such lien, the lien shall continue until such suit or suits be finally determined and satisfied.”

The plaintiff’, having perfected his lien by properly making out and filing his account, proceeded forthwith to obtain a judgment for the amount thereof, pursuant to the provisions of this section. But more than two years elapsed before he succeeded in obtaining a final judgment for the amount of his claim.1. Execution having been issued upon this judgment and returned unsatisfied, he’ then commenced the present action under the amendatory act of March 25,1851 (S. & C. 837), which is as follows: That any person or persons who now hold or shall hereafter hold a lien under .the above-recited act, may, in addition to the remedy therein provided for, proceed by petition in chancery, as in other cases of liens against the owner or owners of, and all other persons interested, either as lien-holders or otherwise,-in any such boat, vessel, or other water-craft, or house, mill, manufactory, or other building or appurtenance in the first section of said act mentioned, and the lot or lots of land on which the same shall stand, and obtaimsueh final decree therein for the rent or sale thereof as justice and equity may require, anything in said act to the contrary notwithstanding.”

The theory of the defense is, that no action having been brought for the direct enforcement of plaintiff’s lien within two years from the completion of his work, the lien can no longer be asserted against the premises, which are held by "Wolf as a bona fide purchaser, without actual notice of plaintiff’s claim.

Prior to the passage of the amendatory act of T851, the holder of a mechanic’s lien could not have proceeded in equity to enforce it until he had first ascertained and liquidated the amount of his account by a judgment at law, as provided for in the 8th section of the original act. It was so held by tile Supreme Court (per Judge Hitchcock) on the circuit. Western Law Journal, vol. 8, p. 569.

And such was the evident understanding of the legislature, otherwise the amendatory act of 1851 would be wholly superfluous; for its sole purpose and effect is to permit the lienholder to proceed in equity in the first instance.

But this amendatory act left the original section 8 in full force. It simply gave a remedy “ in addition to ” that given by the original act. It allowed a lienholder “ to proceed by petition in chancery as in other cases of liens,” in the first instance, “ anything in said act to the contrary notwithstanding.”

The result is that a lienholder might still proceed, under section 8, to obtain a judgment at law on his account. In many cases he might obtain satisfaction of his judgment without the aid of a court of equity; and it is the clear policy of this section that this course might be adopted without prejudice to the lien. Its plain language is, “ when any suit or suits shall be commenced on such accounts within the time of such lien, the lien shall continue until such suit or suits be finally determined and satisfied.” The lien in this case was not created by a lis pendens, but by the filing of the account in the recorder’s office, of which Wolf had constructive notice; and be was thereby put upon inquiry whether suit had been brought on the account within the two years given by the statute, and whether the judgment obtained thereon had been satisfied.

"We think the demurrer to defendant Wolf’s answer was well taken, and should have been sustained by the Court of Common Pleas, and that the District Court erred in affirming its judgment. We therefore reverse the judgments of each of said courts, and remand the cause to the Court of Common Pleas for further proceedings.

Day, Whitman, Wright, and Johnson, JJ., concurred.  