First. That the action is a joinder in one suit of an action of assumpsit for work and labor, with a chancery proceeding to foreclose the equity of redemption.
This ground of objection having been already fully considered in the case of Hornbuckle v. Toombs, needs no further discussion.
Secondly. That the claim of a mechanic for a statutory lien cannot be enforced by an assignee by a suit in his own name.
In answer to this objection it is sufficient to refer to the fourth section of the Civil Practice Act of Montana, which provides that actions shall be prosecuted in the name of the real party in interest. McKillican had completed his claim by filing his lien before assigning it to the plaintiff. It was perfectly lawful for him to assign his claim. It was not against any principle of public policy to do so. When assigned, the claim really belonged to the plaintiff, and according to the code he was the proper person to bring suit upon it.
Thirdly. That the mortgage of the defendant was entitled to priority over the claims of the plaintiff, which were not filed till November, 1869, and Bilsland did not commence work until after the mortgage was given.
The language of the eighth section of the mechanic's lien law of Montana is unambiguous. The liens secured to the mechanics and material-men have precedence over all other incumbrances put upon the property after the commencement of the building. And this is just. Why should a purchaser or lender have the benefit of the labor and materials which go into the property and give it its existence and value? At all events the law is clear, and the decree was right.
DECREE AFFIRMED.
Dissenting, Justices CLIFFORD, DAVIS, and STRONG.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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