#### John Turney, Administrator, et al. v. Edward E. Saunders et al.

Error to Jo Daviess.

1. Public LANDS — rights of occupants. The public lands of the United States, in the possession of occupants, are treated by the laws of Illinois as the property of the individuals occupying the same, and as such are subject to the control and disposition of the law, so far as the occupants are concerned, as much as if they owned the fee, except, however, that no disposition can be made of them so as to effect in any way a title which may be derived from the United States. (a)

2. Same — ejectment for "claim." Semble, That in an action of ejectment for the possession of a “claim” to public land, it is only necessary for the plaintiff to deduce a regular title from the first occupant (unless his claim has been abandoned), who is considered as the fountain of the title, which will prevail unless opposed by a government title, when it vanishes.

3. Same — ptirckase of "claim?'' tinder execution. The purchaser of a tract of land in possession of the defendant in an execution acquires all the rights, whatever they may be, of the entire estate, whatever it is, which the defendant has in the premises, to just the same extent that he would by a voluntary purchase from the party. And he may bring ejectment to recover the possession; and the defendant would be estopped from denying that he had title, as completely as he would be if the proceedings were upon a mortgage which he had executed on the premises, (b)

4. Same — mechanic's lien on “claim.” Persons in possession of, and owning claims and improvements on the public lands of the United States, are embraced within the meaning of the lawgiving a lien to mechanics upon the land upon which the buildings are erected, whether such persons are entitled to pre-emptions thereon or not. (c)

5. Mechanic’s lien — statute of 1839. Under the act of 1839, giving a lien to mechanics, there is no time specified within which the suit to enforce the lien must be brought, as between the parties to the contract, (d)

6. Same — and of 1833. A mechanic’s lien, growing out of a contract entered into before the passage of the act of 1839, but not completed until after it took effect, should be prosecuted under that act. The right which a plaintiff had acquired to bring a suit by the completion of his contract, under the law giving the mechanics a lien, and the liability incurred by the defendant to be sued, are the “rights acquired and the liabilities incurred under” the act of 1833, which are not “affected by the repeal thereof.”

7. Same — defective description. A petition for a mechanic’s lien upon a house and tract of land alleged that “the house is situated upon a tract of twelve acres, more or less, included in” a certain quarter section of land, which was described in the petition, “and in that portion of said quarter section, known and described as William Camp*546bell's Addition to Galena; and the said house is known and designated as ‘Argyle Cottage,’ in which said William Campbell now resides:” Held, that the description was too indefinite. (e)

[* 528] This was a petition for a mechanic’s lien, filed in the Jo Daviess circuit court by the defendant in error, against Wm, Campbell and John W. Campbell, on the 13th of October, 1841.

The petition states -that the defendants in error, in October, 1839, were employed by Wm. Campbell to do the carpenter’s work of, and furnish materials to build a house, situate on part of the northwest quarter of section thirteen [13], in township twenty-eight [28] north, range [1] west of the fourth principal meridian; that said William Campbell was the proprietor of the said tract of land, ‘‘by right of pre-emption,” under the laws of the United States; that the house is situate on a tract of twelve acres in said quarter section, and included in that portion of said quarter section known as “William Campbell’s Addition to Galena,” and the house designated as “Argyle Cottage;” that the substance of the contract was, that Crook and Saunders were to furnish-the necessary materials and build the house and that Campbell was to pay a reasonable compensation; that they commenced work in October, 1839, and finished in the month of August, 1841, when they completed their contract. The petition then refers to a bill of items for work and materials, marked A, but no such bill appears on the record. It states that the petitioners had received $180 in part payment, and that there was still due them $306.75; that Campbell, although requested, has refused to pay the balance; that Wm. Campbell, on the 4th ' of April, 1840, together with Frances G. Campbell, his wife, assigned, released and quit-claimed the said premises to John W. Campbell, of Jackson, in the state of Tennessee, and prays that he may also be made defendant; and alleges that notwithstanding this conveyance, the title to the land was still in the United States, and the right of pre-emption still in Wm. Campbell. The petition then alleges that the petitioners are entitled to their lien under the law entitled “An act to provide for mechanic’s and other liens for the value of labor and materials,” and concludes with a prayer for the sale of the premises.

On the 24th of November, 1841, Wm. Campbell filéd a general demurrer to the petition.

On the 16th of March, 1842, on motion of the attorney of the petitioners, the death of Wm. Campbell was suggested upon the record.

On the 1st of June, 1842, summons was issued against John *547Turney, administrator, and Frances G. Campbell, administratrix, of Wm. Campbell, deceased, -which was duly served.

On the 21st of June, 1842, the appearance of John W. Campbell was entered.

On the 27th of March, 1843, the court overruled the demurrer filed by Wm. Campbell to the petition.

On the 13th of June, 1843, the court ordered a jury to be empannelled to assess damages against the administrators of Wm. Campbell, deceased, which the jury found for the [*529] petitioners, against said administrators, for $340.49, and the court rendered judgment upon the verdict, and awarded a special execution to be levied upon the property described in the petition. The defendants brought the cause to this court by writ of error.

The following errors were assigned :

1. The circuit court erred in overruling the demurrer to the petition.

2. The circuit court erred in directing an assessment of damages, on overruling the demurrer aforesaid, without rendering any judgment on the demurrer.

3. The court erred in rendering a judgment upon the verdict of the assessment of damages by the jury against the administrators of Wm. Campbell, deceased, they never having filed any plea or demurrer, or entered any appearance in the cause, and no judgment by default or otherwise having been entered against them.

4. The court erred in rendering judgment upon the verdict of the jury against the administrators of Wm. Campbell alone, there being no plea or demurrer by, or judgment against, John W. Campbell, the other defendant, and no record of any proceeding in said cause as to him, after his appeal anee.

5. The court erred in rendering judgment for the sale of'the land in the petition described.

N. H. Pueple and' Thompson Campbell, for the plaintiffs in error,

cited Laws of 1839-40, § 147; Davenport et al. v. Farrar, 1 Scam. 314.

E. B. Washburne, for the defendants in error:

Though the contract might have had its inception under the law of 1833, yet the defendants in error could pursue their remedy against the plaintiffs in error for a non-compliance with the contract, under the law of 1839.

While a law cannot be made which shall violate the obligations of a contract, yet a law can properly be made regulating modes of proceeding in courts in relation to past contracts as well as future. Bronson v. Kinzie, 17 Peters 45; 1 Howard 311.

The doctrine that the remedy provided by law to enforce a *548contract, is part of the contract, has been long since exploded. Williams v. Waldo et al. 3 Scam.. 268.

Our mechanic’s lien is the legal result of certain acts, and it attaches to the building as well as the land, whenever the performance of these acts is shown.

After the work is done, or the materials are furnished, the lien attaches, and the party having the.lien' can avail himself [*530] of its benefit under any law in existence at the time the lien attaches.

This is a chancery proceeding under the law of 1839. Laws of 1839-40, 150.

Mechanics are favored in law. They are frequently unlettered men, and courts will uphold the policy of the country in giving statutes a free interpretation in favor of the laborer. They were made to secure to him the reward of his toil, and should not be baffled by any subterfuge. 10 Wend. 375 ; and per Pray, Justice, -2 Howard, Miss. 874.

The court below properly overruled the demurrer. As to what the petition must state, vide § 4, of the law of 1839-40, p. 147; Muller v. Smith, 3 Scam. 543. That the description of the premises is sufficiently definite, vide Atkinson v. Lester et al. 1 Seam. 407; Ross et al. v. Reddick, 1 Scam. 73.

A part}*- having a pre-emption right has such a “ right, interest or estate” in the land as can be reached by the lien of the mechanic or person furnishing materials. Laws of 1839-40, 149, § 17; McConnel v. Wilcox, 1 Scam. 344; Doyle et al.'v. Knapp, 3 Scam. 334.

There was no error in the court below directing an assessment of the damages on overruling the demurrer, without rendering any judgment upon the demurrer. That point has been decided in Godfrey et al. v. Buckmaster, 1 Scam, 447; and the same principle has been recognised in Conradi et al. v. Evans et al. 2 Scam. 185; Weatherford v. Fishback, 3 Scam. 170; Phillips v. Dana, 1 Scam. 498; Clemson v. The State Bank of Illinois, 1 Scam. 45; and Wilcox v. Wood, 3 Scam. 51.

John W. Campbell was not a party to the contract, and the jury could have found nothing against him. He rvas in court a year, and had all that time in which to plead, answer, or demur. Having done neither, the petition would, therefore, have been taken pro eonfesso as against him.

“ The want of a formal order on the record that a bill be taken pro eonfesso, cannot be assigned for error.” Savage et al. v. Berry, 2 Scam. 545.

In Yaltier v. Hinde et al. 7 Peters, 252, one Garrison was made a party who came in and disclaimed, and the court went, on and rendered decrees against the other parties. In giving the opinion of the court, Chief Justice Marshall says: “If defendants *549have distinct interest, so that substantial justice can be done against one or more of them, over whom the court has jurisdiction, without affecting the interests of others, it may be exercised as to them.”

The jury having found nothing against John W. Campbell, it will be considered equivalent to a decree of dismissal as to time. The judgment, therefore, was property rendered against the administrators of Wm; Campbell alone. [* 53l]

(a)

Cases Citing Text. Improvements made on government lands are property and pass to as-signee in bankruptcy of owner. French v. Carr, 2 Gilm, 664, 668.

Pre-emption right may be conveyed. Delaunay v. Burnett, 4 Gilm. 454, 492; Sargeant v. Kellogg, 5 Gilm. 273, 279; May v. Symms, 20 Ill. 95, 100.

Congress has power to enact that all conveyances of bounty lands or warrants therefor, prior to issue of patent, are void. Rose v. Buckland, 17 Ill. 309, 313.

Writing is necessary to cjnvey preemption right; it does not pass by parol. Lester v. White’s Heirs, 44 Ill. 464, 467,

(b)

Interest in land of mere possessor may be sold on execution, Switzer v. Skiles, 3 Gilm. 529, 533; McClure v. Engelhardt, 17 Ill. 47, 49.

(c)

Mechanic’s lien attaches'to interest of mere possessor of land. Steigleman v. McBride, 17 Ill. 300, 302.

Owner, who stands by while contract is made and work done on his land, without disclosing his title, is estopped to set it up against claimant of mechanic’s lien. Donaldson v. Holmes, 23 Ill. 85, 87.

(d)

Followed; Garrett v. Stevenson, 3 Gilm. 261, 263. Rule is the same under later statutes, Shaeffer v. Weed, 3 Gilm. 511. Van Pelt v. Dunford, 58 Ill. 145; Jennings v. Hinkle, 81 Ill. 183. See R. S. 1874, Liens, ch. 82 § 28; S. & C's Stats, p, 1527; Cothran’5 Stats. (1885) p. 931.

(e)

Proceedings under mechanic's lien statute of 1839 held to be in nature of chancery proceedings, Kimball v. Cook, 1 Gilm. 423, 426.

Catos', Justice,

delivered the opinion of the court:

This was a petition filed under the act to secure liens to mechanics, which became a law December 10th, 1839; and the first error assigned is that the court should have sustained the demurrer to the petition. In determining whether this demurrer was well taken, it is proper that we should first enquire whether a person in possession of and entitled to a pre-emption to a tract of public land, has such an estate in the premises, as to secure a lien to the mechanic, for erecting buildings thereon under a contract with the person thus in possession. We are clearly of opinion that he has. The legislature has wisely seen fit to pass a variety of acts recognizing and affecting the interests in these possessions of the occupants of the public lands. The general government still retains the title to a great proportion of the land, in many of our populous and wealthy counties, on which are permanent improvements of great intrinsic value; and hence the necessity of passing laws adapted to property thus peculiarly situated. To allow a class of persons to hold and enjoy large fortunes beyond the reach of their creditors was too shocking to a sense of justice, to allow it to pass unnoticed by the legislature ; and consequently it has, by repeated acts, treated these improvements as the proper subjects of transfer and ownership. They are made sufficient consideration for contracts and promises. Lands thus owned and occupied are treated as proper subjects for actions of trespass, forcible entry and detainer, forcible detainer and ejectment; and, indeed, they are throughout treated as the property of the individuals possessing them ; and as such they are subject to the control and disposition of the law, so far as the occupant is concerned, as much as if he owned the fee, except, however, that no disposition can be made of them so as to effect in any way a title which may be derived from the United States. In cases of ejectment for these claims, it is only necessary for the plaintiff to deduce a regular title from the first occupant, (unless his claim has been abandoned) who is considered as the fountain of this title, which will prevail, unless opposed by a government title, when it vanishes. Upon such titles depend the security of extensive plantations, and some of the largest manufactories, mills, and machinery in the state. Such is the situation of many populous villages and flourishing towns.

*550To hold that mechanics who have constructed these improvements, have no lien upon them for their labor and materials, while mechanics in all other parts of the state are secured, by operation of law, upon the buildings which they erect, would be attributing to the legislature a partiality and injustice which never could have been intended, and entirely at war with the ['*'532] policy indicated by the whole course of legislation on this subject. It is urged, as a reason why the lien should not attach, that the plaintiff could get nothing by a sale of the premises. But this is an objection which comes with but an ill grace from a defendant for whose benefit the improvements were made, and who is in the enjoyment of them. But this objection leads us still further, and assumes that if the party should pursue his ordinary remedy, and obtain a general execution, still this species of property is entirely beyond his reach. This is not so. The defendant cannot, after having enriched himself at the expense of the mechanic, and while he is in the open and avowed possession and enjoyment of the property, bid defiance to the process of the courts, because it is situated on the public lands. His mouth is, as in justice it should be, forever closed against such an objection. If it cannot be sold because it is of no value, or if the plaintiff chooses to bid it in at his own risk, he alone has a right to complain. But the purchaser, under a legal sale, acquires all the rights, whatever they are, to the entire estate, whatever it is, which the defendant has in the premises, to just the same extent that he would by a voluntary purchase from the party, and the purchaser may bring ejectment - to recover the possession, and the defendairt would be estopped from ¿enying that he had title, as completely as he would be if the proceedings were upon a mortgage which he had executed on the premises.

The 17th section of the act provides that the person who has an estate in the premises, though less than a fee simple, shall be considered as the owner, within the meaning of the act, to the extent of his right and interest in the premises, and that the lien shall bind his interest in like manner as a mortgage would have done, and the right of redemption may be sold, or any other right or estate such owner had in the land, at the time of making the contract. Indeed it would seem impossible for the legislature to have used language more comprehensive, to embrace even the most minute or transient interest or estate which the defendant has in the premises; and in this no inconvenience or injustice can result, as will be seen, if we bear in mind constantly, that in selling the defendant’s interest, we in nowise attempt to interfere with, or prejudice any paramount title. We are clearly of opinion that persons owning claims and improvements on the public lands of the United States are embraced within the mean*551ing of this latv, whether they are entitled to pre-emptions thereon or not.

The next and scarcely less important enquiry which is presented is whether the party had a right to proceed under the act of December 10th, 1839. The contract was made in October, 1839, but was not completed till August, 1841. The law of 1839 has more specifically defined the mode of proceeding, to obtain the benefit of the lien, and made it a proceeding in chancery, and has required a more particular description of [* 533 ] the contract under which the work was done; and as between the parties to the contract, there is no time specified within which the suit must be brought to save the lieu. The first section of the act of 1839, provides, “ That any person who shall, by contract, etc., furnish labor and materials, etc., shall have a lien,” and the last section of the act repeals, the act of 1833, but provides that “rights acquired and liabilities incurred under that act, shall not be affected by the repeal thereof.” As the only material change which is made by the last act, so far as the rights of parties are concerned, is authorizing mechanics to bring suits to enforce their liens, after the expiration of three months from the time when the payment should have been made, the right of the legislature in affording a remedy under contracts then in existence, where the limitation had not already expired, by applying the provisions of the last act, will hardly be questioned; so that we are left to determine, from the-expression used in the last section of the act, whether the legislature intended that the remedies upon contracts then in existence, but which were not yet completed, should be pursued under the old or the new law.

In order to determine this it is necessary to ascertain what are those rights and liabilities spoken of in this repealing clause. We can have no doubt that the right which the plaintiff had acquired to bring a suit by the completion of his contract, and the liability incurred by the defendant to be sued, are the “rights acquired and liabilities incurred under that act,” which should “ not be affected by the repeal thereof.” Before the time had arrived when the compensation was payable, the plaintiff’s rights, at least, were but very imperfect. Indeed he can hardly be said to have acquired airy rights', for he had no cause of action against the defendant, nor liad the defendant till then incurred any tangible liability. And at that time there was no law in existence under which he could prosecute his lien, unless he is allowed the benefit of the act of 1839. As he could prosecute no rights under the law of 1833, which he should thereafter acquire, his lien is gone, unless it exists under the law by which that act was repealed. Then is his lien gone altogether ? Such was manifestly not the intention of the legislature. It intended, as we think it has clearly provided, that rights to prosecute suits, acquired under the law of *5521888, should not be affected by its repeal, and similar rights, ydiieh should accrue after the law of 1839 should take effect, should be prosecuted under that law; Hence we are of opinion that this suit was properly instituted under the latter law.

The only remaining question, in determining the sufficiency of this petition, is whether the premises sought to be subjected to this lien are sufficiently described. The description in the petition is as follows: “ And your petitioner states that the said [*' 534 ] house is situate on a tract of twelve acres, more or less, included in said quarter section above described, and in that portion of said quarter section, known and described as William Campbell’s addition to Galena, and the said house is known and designated as ‘ Argyle Cottage,’ in which said William Campbell now resides.” By the prayer of the petition this tract of twelve acres, together with the Argyle Cottage, is claimed to be subject to the lien. This description is so indefinite as to render it impossible for the sheriff to point out and locate the premises, should he be directed to sell them under a special execution. We are told that the twelve acre tract is situated somewhere in Campbell’s addition to Galena, but in what part we are not informed. If is true that the twelve acres include Argjde Cottage, but in what part it is located we are not informed. A part of the quarter section is laid off into Campbell’s addition to'Galena, in which, somewhere, the twelve acres are located, hat no landmarks or data are given, to enable any one, by any possibility to locate or describe them.

We think this description altpgether insufficient, and for that reason the demurrer should have been sustained. Several other errors have been assigned, of a formal or technical character which we do not think it necessary to investigate.

The judgment below is reversed at the costs of the defendant, and the cause remanded with leave to the plaintiff below to amend his petition.

Soates, Justice,

delivered tlie following dissenting opinion : I concur with the court in reversing this judgment,, upon the ground of uncertainty in the description of the property; but in relation to the mechanic’s lien attaching to such an interest as the intestate possessed, I differ with the majority of the court.

By the act of 1833 (R. L. 447), when the contract is made with the proprietor or proprietors of any tract of land or town lot,” to erect or repair any house, mill, building, or machinery, or to furnish materials, a lien to secure payment therefor shall attach upon such “ house, building, mill, machinery, and on such tract of land or town lot.”

By the act of 1833-40 (Laws of 1839-40, 147), in a similar express contract made with the ‘£ owner of any piece of land or town lot,” the mechanic “shall have a lien upon the whole *553tract of land or town lot,” for sueli labor or materials, wliicli extends to “all work done, and materials furnished under the provisions of the contract.” (§ 2) ; “ and the court is authorized to order the sale thereof.” § 3. If the “ premises can be separated,” the court may order the sale of a part, when part is sufficient. § 14, p. 148. If the person “ has an estate for life only, or any other estate less than a fee simple in the land or lot,” or if the same “ is mortgaged, or under any other encumbrance,” he “ shall nevertheless be considered as the owner, [*535] within the meaning of this act, to the extent of his right and interest in the premises,” and whatever right or estate he has, or his equity of redemption, may be sold. § 17, And “ no encumbrance ” shall defeat the lien as to the work and materials. ' § 20 ; “ but the legal or equitable claim to lands or lots” shall be such an interest within the meaning of this act. § 21.

In the cases of Carson v. Clark, 1 Scam. 113, and Hutson v. Overturf., 1 Scam. 170, it was held by this court that the work and labor and possessory right of a settler upon congress land were not a sufficient consideration to support a promise, after entry, to pay for them. The statute afterwards interposed and declared that •such sale of improvements should be deemed a good consideration. R. L. 420. Still this statute does not create any estate in the land, either legal or equitable, nor any claim to it. Neither do I regard the pre-emption laws as conferring any estate in the land, either in law or equity, so as to make the pre-emptor either an owner or proprietor. It is a mere proposition of the vendor to the party, giving him a preference and a certain limited time to accept the terms before the land shall be offered generally to any bidder. - How one having the option for a limited time to become the purchaser in preference to all others can, by reason and force merely of such proposition, acquire a claim to, or estate of any kind in, the property about which he is negotiating, is more than I can, legally speaking, comprehend. In the ease of Wilcox v. McConnel, 13 Peters 498, the supreme court of the United States would not admit a certificate of purchase to be evidence of title, although issued by the agents of the vendor. When, therefore, the legislature speaks of the legal or equitable estates or interests claimed in lands or town lots by proprietors or owners we should not look for those mere possessory claims which may be maintained against all having no title, but which cannot be set up to resist the lowest grade of estate in the land. This 'is a mere preemption claim, which is neither proprietorship, ownership, legal or equitable estate or interest, nor even claim of them in the land, but a mere right of possession to the land, as against those who have no title, claim, interest, or estate in it.

*554I concur, therefore, in reversing the judgment,. but not in remanding it for further proceedings, as X do not think that a lien can attach to such an interest as the administrator’s intestate liad in this land.

Thomas, Justice, said : I concur in the foregoing opinion of Mr. Justice Scates.

• Judgment reversed.