Noll v. Kenneally. purchased the paper in good faith, for value, before maturity; and as against such indorsee, parol evidence was inadmissible to show that the character or limit of the liability of plaintiffs in error was other or different from that which the law presumes it to be. Cora H. Sloman filed a separate petition in error in the case in this court, but having failed to favor us either with a brief or oral argument upon her assignments of error, and no error appearing upon the record prejudicial to her rights, her petition in error is overruled. The judgment of the district court is THE other judges concur. AFFIRMED. 37 879 WILLIAM H. NOLL, APPELLANT, V. JAMES KEN NEALLY ET AL., APPELLEES. 40 584 37 879 43 896 37 879 44 510 FILED OCTOBER 17, 1893. No. 4902. 1. Mechanics' Liens: TIME TO FILE STATEMENT. for a mechanic's lien must be filed with the register of deeds of 56 356 2. -: EVIDENCE. Held, That the evidence in this case fails to show that such a statement was ever filed. 37 879 58 73 37 879 3. 4. : ASSIGNMENT OF CLAIM BEFORE FILING LIEN: RIGHTS OF ASSIGNEE. The transfer by a material-man to another party of his account for materials furnished for the construction of a building, before the filing of his claim for a lien, destroys the right to a lien, and confers no authority upon the assignee to file and enforce a mechanic's lien for such materials. The assignee, after such assignment, cannot perfect the lien by complying with the requirements of the statute. -: ACCOUNT AND AFFIDAVIT: DATES OF MATERIAL FURNISHED. The failure of an account filed to secure a mechanic's 59 213 5. : : Noll v. Kenneally. lien to state the dates the various items of materials were furnished will not vitiate the lien, if it appears from the account and affidavit thereto attached that such materials were furnished within the requisite time to entitle the claimant to a lien therefor. An account for a mechanic's lien, after giving the items of materials for which a lien is claimed, states that "the above items were sold for $677.65, and delivered be. tween July 10, 1888, and October 18, 1888," and the affidavit attached to the account alleges that said materials were furnished at the times mentioned in the account. Held, To sufficiently designate the time. APPEAL from the district court of Lancaster county. Heard below before HALL, J. M.-L. Easterday, for appellant, cited: Skyrme v. Occidental Mill & Mining Co., 8 Nev., 220; Kneeland, Mechanics' Liens [2d ed.], sec. 8; Hallahan v. Herbert, 11 Abbott Pr. Rep., n. s. [N. Y.], 336. Robert Ryan and Harwood, Ames & Kelly, contra, contending that the claim for a lien is insufficient, because it fails to give the dates when the material was furnished, cited Associates of the Jersey Company v. Davison, 29 N. J. L., 415; Lehman v. Thomas, 5 Watts & S. [Pa.], 262; Faulkner v. Reilly, 1 Philadelphia Rep. [Pa.], 234; Ayres v. Revere, 1 Dutch. [N. J. L.], 481; Wagar v. Briscoe, 38 Mich., 592; Noll v. Swineford, 6 Pa. St., 191; Rehrer v. Zeigler, 3 Watts & S. [Pa.], 258; Thomas v. James, 7 Id. 381; Witman v. Walker, 9 Id. 186; Cook v. Heald, 21 Ill., 425; Wade v. Reitz, 18 Ind., 307; Shackleford v. Beck, 80 Va., 573; Hayden v. Wulfing, 19 Mo. App., 353; Valentine v. Rawson, 57 Ia., 179. The assignee should have shown that he became the owner after the lien was perfected. If he has not so shown, it is as reasonable to assume that it was before as after the perfecting of the lien. If before, the lien did not pass by the assignment. (Goodman v. Pence, 21 Neb., 462; Tewksbury v. Bronson, 48 Wis., 581.) This was an action brought by appellant to enforce a mechanic's lien for materials furnished by R. A. Handy & Co, under a verbal contract with the defendant James Kenneally, for the erection of a dwelling and barn on lot 10, in block 2, in Summerdale addition to the city of Lin.coln. Plaintiff claims as assignee of the account and mechanic's lien. Kenneally was the owner of the lot when the materials were furnished. Subsequently, on August 28, 1888, he mortgaged the premises to the defendant James Woolworth to secure the payment of $800, at the time borrowed. On the 22d day of November, 1888, the defendant Thomas McAlpine purchased said premises from Kenneally, subject to the payment of said mortgage. The district court rendered a personal judgment in favor of plaintiff, and against Kenneally, for $743.37, and decreed that plaintiff was not entitled to a mechanic's lien for any amount. Plaintiff appeals. No question is made in this court by any one as to the amount of the judgment rendered by the court below, the sole contention here being whether the court erred in not decreeing that plaintiff had a valid lien upon the real estate for the amount so found due him. Appellees urge numerous objections against the right of plaintiff to a lien, which we will notice. It is claimed by counsel for appellees that there is neither proof that the materials charged in plaintiff's account and claim for lien were ever furnished by Handy & Co., nor is there any evidence of the value of the same. While the testimony on the subject is quite meager, we are of the opinion that it sufficiently appears that Handy & Co. furnished and caused to be delivered, on the lot in question, all the materials which were used in the construction of the house and barn. The only evidence as to value was that given by Mr. Sable, one of the carpenters who erected the Noll v. Kenneally. buildings, who estimated the value of the materials used in the construction of the house at $540, and the barn at $70. It is said that there is no proof that a claim for lien was filed with the register of deeds. The petition alleges that on the 31st day of December, 1888, and within four months from the time of the furnishing of the materials, R. A. Handy & Co. made, under oath, an account in writing of the materials, and filed the same in the office of the register of deeds of Lancaster county, claiming a mechanic's lien therefor upon said premises, which lien was recorded in book D of mechanics' liens at page 349. The above allegation being put in issue by the general denial in the answers of appellees, it devolved upon the plaintiff to establish upon the trial, by competent evidence, the filing of the claim for lien. This he failed to do. The mechanic's lien records of Lancaster county were neither produced at the trial, nor offered in evidence. Plaintiff, over objections of defendants, introduced in evidence the lien attached to his petition as an exhibit. While it contains an indorsement purporting to have been made by the register of deeds, showing the filing and recording of the paper, yet the indorsement was not offered in evidence. Plaintiff should have made his offer sufficiently broad to have included the introduction of the indorsement of the filing of the statement of lien. In this state one who seeks to enforce a mechanic's lien is required to file a verified account of the materials furnished or labor performed, for which a lien is claimed, in the office of the register of deeds, within four months after the furnishing of the last item of materials, or the performance of the labor. The filing operates as a creation of the lien, and unless this is done, his right to a lien is lost. there is a total failure of proof that any claim for lien was filed by plaintiff's assignors with the register of deeds, plaintiff was not entitled to have a lien established on the premises in controversy. Noll v. Kenneally. There is another well founded reason why a decree of foreclosure was properly refused in this case. The undisputed testimony shows that Handy & Co. sold and transferred their account for the materials to the plaintiff in November, 1888, before any steps had been taken by them to perfect a lien. Afterwards, on the 31st day of December, 1888, they made out a sworn statement claiming a mechanic's lien on the lot for the amount of materials furnished for the building, and in January, 1889, made a formal assignment thereof to plaintiff. The transfer of the debt before filing the claim for lien extinguished the right to a lien on the premises. Handy & Co. could not afterwards perfect a lien, for the reason they had disposed of their claim, nor could the plaintiff do so, since the assignment of the debt did not have the effect to transfer a right to perfect and enforce a lien therefor. (Goodman v. Pence 21 Neb., 459; Tewksbury v. Bronson, 48 Wis., 581.) In Goodman v. Pence, supra, this court held that the mere assignment of the account for labor performed and materials furnished for the erection of a building will not give the assignee the right to assert a mechanic's lien therefor. The court in the opinion says: "The mere performance of labor or furnishing material to another is not sufficient to entitle a party to a mechanic's lien. His right to the same depends upon compliance with the statute. Until he has so complied he has no lien which he can assign. When, however, he has acquired a lien, he may assign the same with the account to another. In other words, a mere inchoate right to a mechanic's lien is not assignable, although the lien when acquired passes with an assignment. *If the mere assignment of the debt gave the assignee the right to assert the lien, then in cases where portions of the debt were assigned to different persons each must file a lien for the amount due to himself, and thus instead of one lien against the property, there might be fifty, or an in |