person to whom the same may come, or with whom it may remain by reason of such rescission, to the extent only that the actual value of the property may be enhanced by the improvements so placed upon it.

ed by eviction of

claimant.

§ 3. If the owner or claimant of the property shall be Lien-how affect evicted from the possession thereof by the judgment of a court, and shall be entitled to compensation for improvements, the person who is entitled to a lien, as provided in the first section, shall, to the extent of such lien, debt, and costs, be substituted to the rights of the person so evicted, and shall have satisfaction of his debt and costs, if enough, out of the sum adjudged for improvements.

years,

Right of substi

tution against the

claim for im

provements.

to have right of removing the improvement made.

4. If the labor be performed or the materials furnished Mechanic-when by contract with a lessee of real estate for a term of and if, before the expiration of the term by lapse of time, the lessee's interest therein shall, from any cause, become forfeited to the lessor, or shall be surrendered to him; and if the lessor shall refuse to pay for the same, the person performing the work or furnishing the materials shall have the right to remove the same from the leased premises: Provided, It can be done without material injury to any previous improvement on said leased premises.

§ 5. If the labor performed, or materials furnished, shall not be performed or furnished by contract with the owner, but for a contractor or sub-contractor, no lien shall attach for the same, unless notice in writing be given to the owner that a lien will be claimed; and in such case it shall be the duty of the owner, if he, at the time of receiving such notice, is indebted to the contractor or sub-contractor, to withhold a sufficient amount to satisfy the claim of the party so notifying him, provided his indebtedness be enough to pay the same, and if not, then he shall pay to the extent of his indebtedness; and if he receive notice from more than one, and his indebtedness is not then sufficient to pay the claims of all, he shall pay them pro rata. If the owner shall fail to pay, upon notice, as required in this section, the property shall be in lien for the amount he ought to pay as prescribed in the first section of this chapter: Provided, That no lien shall exist in favor of such persons, in case the contractor himself is not entitled to a lien; nor shall the liens authorized by this chapter have effect, if security shall have been taken for the labor performed or materials furnished.

Sub-contractor,

lien in favorhow acquired, a

duty of owner is respect of.

when, and steps

to be taken by

claimant to pre

serve.

§ 6. The liens mentioned in the preceding sections shall Liens dissolved-be dissolved, unless the claimant, within sixty days after he ceases to labor or furnish materials as aforesaid, files in the office of the clerk of the county court of the county in which such building or improvement is situated, a statement of the amount due him, with all just credits and sets-off known to him, together with a description of the property intended to be covered by the lien, sufficiently accurate to identify it, and the name of the owner, if known, and whether the materials were furnished, or the labor performed by contract with the owner, or with a contractor or subcontractor, which shall be subscribed and sworn to by the person claiming the lien, or by some one in his behalf.

Duty of clerk in

respect of indors

ing and record

ing claimant's

statement.

tion to assert.

§ 7. It shall be the duty of the clerk to indorse upon every such statement or account the date of its filing, and make an abstract thereof in a book to be kept by him for the purpose, properly indorsed and indexed, containing the date of filing the account or statement, the name of the person seeking to enforce the lien, the amount claimed, the name of the person against whose property the lien is filed, and a description of the property charged with the same; for all which the clerk shall receive, as full compensation, the sum of one dollar from the person filing the account or seeking to enforce the lien, which shall be taxed and collected as other costs.

§ 8. The liens declared in this chapter shall be deemed Limitation of ac- as having been dissolved, unless an action shall have been brought to enforce the same within six months from the day of filing the account in the clerk's office, as required by the sixth section of this chapter: Provided, That should the debtor against whose property the lien is claimed depart this life before the expiration of the time prescribed for bringing the action, a further period of six months next after the qualification of his personal representative is allowed within which the action may be brought.

ing to enforce.

§ 9. Actions to enforce liens declared in this chapter shall Mode of proceed be by equitable proceedings, and conducted as other proceedings in equity in similar cases, except as otherwise provided herein. The petition shall, among other things, allege the facts necessary for securing a lien under this chapter, and a description of the property charged therewith, and the interest he seeks to subject. As many of the lien-hold

lienholders

All
my unite.

ers as see proper to unite in the action as plaintiffs may do so, and those who are not plaintiffs must be made defendants, as also the debtor, if he be living, if not, his personal representatives and heirs or devisees, together with all other persons having liens on or interests in the property sought to be subjected. It shall be the duty of the clerk of the court in which such petition is filed to issue the proper pro- Warning orders. cess against the resident defendants, enter warning orders against the non-residents, and appoint an attorney to defend

master commis

for them, and appoint guardians for the infants. After the Reference to the expiration of ten days from the filing of the petition, the sioner. clerk shall draw up an order referring the cause to the master commissioner of the court, and file the same with the petition, and deliver to the commissioner the pleadings and papers of the suit, and make a memorandum thereof in his minute-book.

§ 10. It shall thereupon be the duty of the commissioner, at once, to ascertain the names of the persons who have filed liens with the clerk of the county court against the property sought to be subjected, and he shall fix a time and place at which he will hear proof touching claims against the property. All persons holding liens against the property, whether arising under the provisions of this chapter or otherwise, are required to present the same, with the evidence in their support, to the commissioner. The owner of the property, or any other person whose interest may be affected by the suit, may contest any claim presented.

Duty of master prescribed.

commissioner

scribed.

§ 11. It shall be the duty of the clerk of the circuit court Duty of clerk preto issue subpoenas for witnesses to appear before the commissioner at his sittings; and upon failure to attend, the clerk shall issue attachments against defaulting witnesses as in other cases. The commissioner shall have the same powers and authority which by law are conferred upon examiners in taking depositions, and shall be governed by the same rules and regulations in respect to the evidence which may be produced before him. He may adjourn from day to day and from time to time, until his duties in the cause shall have been completed ready for report. He shall audit the accounts, and make up his report, showing the amount due to each claimant, the nature and character of the respective liens, and the evidence upon which each claim was allowed.

by master.

12. The commissioner shall give reasonable written Notice to be given notice to both plaintiffs and defendants, and to any other lien-holders known to him, or such of them as reside in his county, or to their attorneys, of the time and place of receiving proof of claims as prescribed in the tenth section of this chapter, and shall also post a similar notice on the front door of the court-house of his county.

ed parties.

§ 13. All persons shall be deemed parties to the action, Who to be deem though not made so by the pleadings, or by the service of process, who shall present to the commissioner claims against the property sught to be subjected, or who shall appear before the commissioner to contest the claims of others.

tected.

§ 14. The liens declared in this chapter shall not be af Purchasers pro- fectual or valid against a bona fide purchaser for a valuable consideration without notice, actual or constructive; but if such purchaser receives notice of the lien before the payment of the whole of the purchase money, the lien shall operate on the purchase money remaining unpaid. The pendency of a suit to enforce the lien, or the filing of the account or statement in the clerk's office of the county court, as required by the sixth section of this chapter, shall be deemed constructive notice. (a)

act, clerk to appoint another.

15. If for any cause it should be improper to refer the If master cannot case to the master commissioner, or if the clerk himself be the master commissioner, he is then directed to select some suitable person to act as commissioner for the occasion, and refer the case to him; but before such person shall proceed to act, he shall, before the clerk, take an oath, and execute bond, with sufficient surety, similar in all respects to the bond required to be executed by the master commissioner, which bond shall be preserved by the clerk, and reported to the court at its next ensuing term.

(a) A bona fide mortgagee, for a valuable consideration, must be regarded as a bona fide purchaser within the letter, spirit, and meaning of section 12 of the "mechanics' lien law" Myers Supplement, 305); and such mortgage, without express or constructive notice, given according to the provisions of said statute, cannot be affected by the liens created by said enactment. (Gere and wife vs. Cushing, &c., 5 Bush, 304.)

2. A bona fide mortgagee, for a valuable consideration, stands in the same relation to the lienholder as a bona fide purchaser within the letter, spirit, and meaning of this section, and entitled to the same rights and protection. (Gere and wife vs. Cushing, &c., 5 Bush, 304.)

An Act to amend an act, entitled "An act for the protection of the livery stable keepers of this Commonwealth," approved January 31st, 1871.

1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That the provisions of an act, entitled, "An act for the protection of livery stable keepers in this Comwealth," approved January 31st, 1871, be, and the same are hereby, applied to the counties of

Actions for the Recovery of Real Estate.

§ 1. An action for the recovery of real property can only be brought within fifteen years after the right to institute it first accrued to the plaintiff, or to the person through whom he claims.(a)

2 R. S., 123. years.

Limitation of 15

Todd, Bourbon, Clark, Bath, Montgomery, Boyd, Lawrence, Boyle, Daviess, Hancock, Franklin, Anderson, Lincoln, Garrard, Barren, Casey, Greenup, McLean, Ohio, Butler, Nicholas, Carter, Fleming, Rowan, Cumberland, and Clinton.

2. This act shall take effect and be in force from and after its passage.

Approved March 25, 1873.

(a) One disability cannot be added to another so as to defeat the general statute of limitation. (Clark vs. Jones, 16 B. M., 126; Mitchell vs. Berry, 1 Metcalfe, 610.)

2. The disability of coverture cannot be added to that of infancy to prolong the statutory saving against the legal effect of the lapse of time. (Martin vs. Letty, 18 B. M., 581; Manion vs. Titsworth, 18 B. M., 601; Finley vs. Patterson, 2 B. M., 78.)

3. In suits for land, if a litigant dies before his remedy is barred, and his successor by descent labors under disability at his death, the limitation is suspended. But if, in such a case, the descent be cast on several, the running of the statute is not suspended, unless all of them labor under disability; in which case the suspension would continue as long as the disability of any one of them. (Baker vs. Grundy, 1 Duvall, 282; Macher vs. May, 4 Bibb, 44; McIntire vs. Funk, 5 Litt., 39; South vs. Thomas, 7 B. M., 63.)

4. A judgment of eviction, unless executed, does not stop the running of the statute of limitations. (Petty vs. Malier, 15 B. M., 603.)

5. If the statute begins to run, a subsequent state of insanity will not stop it. If insane when the right of action accrues, and is afterwards restored to his right mind, and continues so for a sufficient time to look into his affairs, and institute suit to recover his rights, the statute will begin to run; and a subsequent return of insanity will not arrest it nor save him from the bar. (Clark vs. Trail, 1 Metcalfe, 41; Anderson vs. Layton, 3 Bush, 87.)

6. The infancy of some of the heirs, when the right of all accrued by descent, prevents limitation from running, and saves the rights of all. (Harlan vs. Seaton, 18 B. M., 326.)

7. But where a decree was rendered against an infant, who lived two years after he obtained his majority, and died, leaving his right to several, some of whom were infants and some adults Held-On a bill of review by all, that the rights of part being barred, all were barred. (Baker vs. Grundy, 1 Duvall, 282.)

8. A possession of twenty years under a junior patent, with an inclosure of several acres, will, if there is nothing in the record to show that the entry under the junior patent was not intended to be co-extensive with the survey and patent, be a bar to an action of ejectment under the elder patent. (Franklin Academy vs. Hall, 16 B. M., 473.)

9. Limitation will not bar an action of ejectment unless the adverse possession has been not GEN. STAT.-40