LIENS. MECHANIC LIENS.
AN ACT to amend Sections 2843 and 2844 of the Revised Code of the State of Delaware in relation to Mechanics' Liens.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
That Section 2843 of the Revised Code be repealed and the following be substituted in lieu thereof:
2843. It shall and may be lawful for any person or persons having performed or furnished work and labor or material, or both, to an amount exceeding twenty-five dollars in or for the erection, alteration, or repair of any house, building, or structure, in pursuance of any contract, express or implied, with the owners of such house, building, or structure, or with the agent of such owner, or with any contractor who shall have contracted for the erection, alteration, or repair of the same, and for the furnishing of the whole or any part of the materials therefor, including any person who shall have performed or furnished work and labor or material, or both, for or at such house, building, or structure, under a contract with or order from any subcontractor, to obtain a lien upon such building, house, or structure, and upon the ground, upon which the same may be situated, or erected, subject, however, to the following restrictions, limitations and qualifications, that is to say: That no contractor who shall have contracted for the erection of any building, house, or structure, in whole or part, or for the repair or alteration of the same, and for the furnishing of the whole or any part of the materials therefor, shall be allowed to file any statement of his claim, as is hereinafter provided, until after the expiration of ninety days from the completion of such building, house, or structure so contracted for by him ; but such contractor, in order to avail himself of the benefits of Sections 1 to 7, inclusive, of this Chapter, shall file his statement in the manner hereinafter provided within thirty days after the expiration of the ninety days aforesaid, and all other persons embraced within the provisions of said sections, and entitled to avail themselves of the liens herein provided for, shall file a statement of their respective claims, in the manner hereinafter designated, within ninety days from the completion of the work and labor performed or from the last delivery of materials furnished by them respectively; and every person or persons entitled to the benefits conferred by said sections, and desiring to avail himself, herself, or themselves of the lien herein provided for, shall, within the time hereinbefore specified, file a statement of his, her, or their claims in the office of the Prothonotary of the Superior Court in and for the County wherein such building or structure is situated. The said statement shall contain and set forth:
First. The names of the party, claimant and owner, or reputed owner of the building, house or structure, and also of the contractor, and whether the contract of the claimant was made with such owner or his agent or with such contractor.
Second. The amount or sum claimed to be due, the nature and kind of the work and labor done, or a bill of particulars of the kind and amount of materials furnished.
Third. The time when the said work and labor or the furnishing of said materials was commenced and finished.
Fourth. The locality of the building, house or structure, with such description as may be sufficient to identify the same.
Fifth. That the said work and labor were performed, or said materials were furnished, on the credit of the said building, house or structure.
Sixth. That the amount of the said claim exceeds twenty-five dollars, and that the same has not been paid to the claimant. The claimant shall make affidavit to the truth and correctness of the said claim and of the facts stated therein. Any judgment obtained upon such claim, as hereinafter provided, shall become a lien upon such building, house or structure, and upon the ground upon which the same is situated, erected or constructed, and shall relate back to the day upon which said work and labor was begun, or the furnishing of said material was commenced. In every case in which one claim for work and labor or materials shall be filed by the same person or persons against two or more buildings, houses, or structures owned by the same person or persons, for building, altering or repairing two or more buildings or structures owned by the same person or persons, the claimant shall, at the time of filing such joint claim, designate the amount which he claims to be due to him on each of such buildings, houses or structures.
Nothing herein contained shall be construed to impair or otherwise affect the right of any person to whom any debt may be due for work and labor done, or materials furnished, to maintain any personal action against the owner or contractor of such building, house or structure, to recover the amount of such debt, nor shall anything herein contained be so construed as to render property liable to liens under said sections for repairs, alterations or additions, when the same has been altered, added to or repaired by or at the instance of any lessee or tenant, without the written consent of the owner or owners, or his, her or their duly authorized agent first had and obtained: Provided, that the owner or owners of any building, house or structure built, repaired or altered by any contractor who shall have contracted to build, erect, alter or repair the same, and furnish the materials therefor, shall be, and he is authorized and empowered, in case any liens shall be entered under said sections upon the said building, house or structure, upon any claim or claims for materials which, by the terms of his contract, the said contractor was bound to furnish, by any person or persons other than such contractor, to retain and withhold from such contractor so much of the monies to be paid to him in pursuance of the contract made with such contractor, as may be necessary to liquidate and discharge such liens; and in case judgment be recovered by such lien creditors, then, in that event, to apply the said monies, or such part thereof as may be necessary to satisfy the said judgment, to the payment and satisfaction thereof; and such payment shall be considered and treated as a payment pro tanto to the said contractor towards the monies provided to be paid by the said contractors. The owner or owners of any building, house or structure built, repaired or altered by any contractor or subcontractor may require such contractor or subcontractor from time to time to furnish and submit to him or them a complete and accurate list in writing of all persons who shall have furnished work and labor or material, or both, in connection therewith, and who may be entitled to avail themselves of the provisions of this Act; should any such contractor or subcontractor fail to furnish such list for ten days after demand made therefor by such owner or owners, he shall be entitled to receive no further payments from the owner or owners until such list be furnished as aforesaid, and further shall not be entitled to avail himself of any of the provisions of this Act. And provided further, that no person or persons embraced within the provisions of said sections, and entitled to avail themselves of the lien herein provided for, shall be considered as waiving the same by granting a credit, or receiving notes or other securities, unless the same be received as payment, or the lien expressly waived, but the sole effect thereof shall be to prevent such person or persons from availing themselves of the liens herein provided for until the expiration of the time agreed upon. Proof by the claimant that such work and labor or material, or both, was performed or furnished upon or to such house, building or structure, or immediately adjacent thereto, shall be prima facie evidence that the same was performed or furnished for and on the credit of such house, building or structure.
That Section 2844 of the Revised Code be repealed and the following be substituted in lieu thereof:
2844. The proceedings to recover the amount of any claim as aforesaid shall be by a writ of scire facias, in the following form, to wit:
"______________ County, ss. The State of Delaware.
To the Sheriff of said County, greeting:
Whereas __________ hath filed a claim in our Superior Court for the County of _________ against for the sum of __________ (for work and labor done or materials furnished as the case may be) to or for a certain building, to wit: (describing it as in the claim). And whereas it is alleged that the said sum still remains due and unpaid to the said _________; now we command you that you make known to said _______ and to all such persons as may hold or occupy the said building, that they be and appear before the judges of our said court at ______, on the ______ day of ______ next, to show if anything they know, or have to say, why the said sum of _______ should not be levied of the said building to the use of the said ________ according to the form and effect of the Act of Assembly in such case made and provided. And have you then there this writ.
Witness (as in similar writs)"
No such Scire Facias shall be issued in any case within ten days previous to the return day thereof. The said writ shall be served in the same manner as other writs of Scire Facias, upon the defendant therein named, if he can be found within the county; and a copy thereof shall be left with some person residing in the building, if occupied as a place of residence ; but .if not so occupied, it shall be the duty of the sheriff to affix a copy of such writ upon the door or other front part of such building. Judgment by default may be entered upon motion by the plaintiff on the last day of the term to which said process is returnable, notwithstanding appearance by the defendant, unless said defendant shall have previously filed in the cause an affidavit that he verily believes there is a legal defense to the whole or part of such cause of action, and setting forth the nature and character of the same; and if the defense be to a part only, then specifying the sum really due; and judgment may be entered for the plaintiff at his election for the sum acknowledged to be due. If such claim be not filed ten days before the return day of said writ, or if judgment be not so entered by default, then like proceedings shall be had as in other cases of Scire Facias.
The execution of every judgment under the foregoing provisions shall be by writ of Levari Facias, in the following form, to wit:
"__________ County, ss. The State of Delaware.
To the Sheriff of said County, greeting:
We command you that without any other writ from us of the following described building and lot of ground, to wit, (describing the same according to the record), in your bailiwick, you cause to be levied as well a certain debt of ________ which ________ lately in our Superior Court for the County aforesaid, before the judges thereof, recovered against __________ to be levied of the said building and lot of ground, as also the interest thereon from the ________ day of ________, A D _________, and also the sum of ________ for the cost which accrued thereon, according to the form and effect of an Act of the General Assembly in such cases made and provided, and have you there monies before our Judges at ________ at our Superior Court in and for the County of _______ there to be held on the ______ day of _______ next, to render unto the said _______ for his debt, interest and costs aforesaid, and have you then there this writ."
Witness (as in similar writs.)
If the proceeds received from any sale under such writ of Levari Facias shall not be sufficient to pay in full all liens, such proceeds shall be ratably divided among the persons who shall have availed themselves of the provisions of this Act without priority or preference of one over the other.
Approved April 25, A. D. 1917.