{
  "id": 4834626,
  "name": "Frank L. Miller et al. v. Robert S. Ticknor et al.",
  "name_abbreviation": "Miller v. Ticknor",
  "decision_date": "1880-12-04",
  "docket_number": "",
  "first_page": "393",
  "last_page": "395",
  "citations": [
    {
      "type": "official",
      "cite": "7 Ill. App. 393"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
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      "cite": "90 Ill. 324",
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    {
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      "cite": "90 Ill. 70",
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    {
      "cite": "51 Ill. 251",
      "category": "reporters:state",
      "reporter": "Ill.",
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    {
      "cite": "90 Ill. 324",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T19:15:10.588151+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Frank L. Miller et al. v. Robert S. Ticknor et al."
    ],
    "opinions": [
      {
        "text": "Pleasants, J.\nThis was a petition filed May 10, 1878, by the defendants in error, as partners, against the plaintiffs in error and Henry Ab\u00e9lman, to enforce a mechanic\u2019s lien for work done and materials furnished under a contract with Miller from May 18th to November 12th, 1877, for a house-on his lot in the city of Elgin. It states, upon information and belief, that the other defendants \u2014 Meier, Hewitt and Abelman \u2014 hold mortgages upon the premises, but that the dates of the same and the amounts, if any due thereon, respectively, are unknown to the petitioners.\nMiller, Meier and Hewitt were defaulted. Abelman answered, denying all knowledge of the transactions between petitioners and Miller, and setting up an interest in the premises under a mortgage to him from said Miller and his wife of Dec. 4, 1876, duly recorded and claimed to be a valid and subsisting lien, subject, however, to a prior mortgage therein recited, for $700, to said Hewitt;, to which there was a replication in the usual form.\nOn final hearing, upon these pleadings and oral and documentary evidence produced, the court made a decree, finding that there was due to the petitioners $95.60, for which they are entitled to a lien upon the premises described, and to Abelman upon his mortgage $1,102.77, for which he is entitled to a lien thereon \u2014 subject, however, to that of the petitioners upon the value of the improvements \u2014 and ordering that in default of the payment of these sums, with interest from that date, by Miller to the parties so entitled, respectively, within thirty days, the Master'make sale of said premises and out of the proceeds pay, first, the costs and expenses; second, to petitioners the amount found due to them; third, to Abelman the amount found due to him, and lastly, the surplus, if any, to the defendant Miller.\nThe decree would be precisely right if Abelman\u2019s were the only lien besides that of petitioners and - subject in all respects to theirs, but as applied to this case is erroneous in two particulars. It fails to find or adjudicate as to the alleged interests of Hewitt and Meier. If they had liens, these should have been ascertained and provided for in their order; if they had not it should have been so declared, that the master\u2019s sale might convey an unclouded title. And of this omission Miller may complain, although they were defaulted. Kilgour v. Crawford, 51 Ill. 251.\nUnder the provisions of the lien act (R. S. Chap. 82, \u00a7 17) as between petitioners and Abelman, the former held the first lien jup\u00f3n the improvements and the second upon the lot, and (\u00a7 15) the proceeds of the sale must be applied in payment of the respective claims in proportion to tlie several amounts. Hence the necessity in such cases of finding the value of the land and of the improvements separately. Grundeis v. Hartwell, 90 Ill. 324. This also the circuit court wholly failed to do, but ordered the payment, first, of the petitioner\u2019s claim in full, although for aught that appears the value of the improvements may be less than its amount, and that of the lot, on which Abelman has the prior lien, not more than sufficient to pay his.\nFor these errors the decree is reversed and the cause remanded for further proceedings in conformity herewith.\nReversed and remanded.",
        "type": "majority",
        "author": "Pleasants, J."
      }
    ],
    "attorneys": [
      "Messrs. Botsford, Barry & Russell,for plaintiffs in error;"
    ],
    "corrections": "",
    "head_matter": "Frank L. Miller et al. v. Robert S. Ticknor et al.\n1. Mechanic\u2019s lien \u2014 Rights of prior mortgagees \u2014 Practice.\u2014In proceedings for a mechanic\u2019s lien where it is claimed that there are prior incumbrances, it is the duty of the court to find and adjudicate upon the rights of the parties holding such prior incumbrances. If such liens exist, they should be ascertained and provided for in then order, and if they do not exist, it should he so declared, in order that the master\u2019s sale may convey an unclouded title.\n2. Priority of lien \u2014 Value of land and improvements. \u2014 Under the provisions of the lien law, the mechanic holds a lien superior to a prior mortgage as to the improvements, and second as to the land; and the proceeds of the sale should be applied in payment of the respective claims in proportion to the several amounts. It is, therefore, necessary in such cases, that the court should find the value of the land and of the improvements separately.\nError to the Circuit Court of Kane county; the Hon. H. H. Cody, Judge, presiding.\nOpinion filed December 4, 1880.\nMessrs. Botsford, Barry & Russell,for plaintiffs in error;\nthat the statute giving a lien is in derogation of the common law, and should be strictly construed, cited Belanger v. Hersey 90 Ill. 70; Crowl v. Eagle 86 Ill. 437.\nThe decree should find the value of the land and improvements separately: Grundies v. Hartwell, 90 Ill. 324; Ogle v. Murray, 3 Bradwell, 344."
  },
  "file_name": "0393-01",
  "first_page_order": 389,
  "last_page_order": 391
}