mining claim, or any part thereof, or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner, for the purposes of this chapter. As amended, Stats. 1881, 49. Kerr, C. C. P. 1183. Employees to have preferred lien for wages in case of insolvent corporations, sec. 1187. A former act (Stats. 1867, 48), allowing liens in favor of laborers for work done on mining claims, did not give a lien for labor done before its passage. Hunter v. Savage Cons. S. M. Co., 4 Nev. 153-155. Where lien was intended to apply only to labor thereafter done, it was held that the first day's labor for which a lien could attach was not the day of the passage of the statute, but the day after. Idem. This statute contemplates a formal suit, a publication of notice, and appearance upon the part of lien claimants other than those commencing the suit, and a disposition of the entire matter of liens against the property affected, in one proceeding; and any person prejudiced by error in the proceeding may. object. Elliott v. Ivers, 6 Nev. 287, 289. The paper called a mechanic's lien is simply evidence that the acts required by statute have been performed and that therefore the lien created by the statute has attached; and an assignment of such paper with all rights thereunder is an assignment of the debt as well as of the lien. Skyrme v. Occidental M. & M. Co., 8 Nev. 220. The mechanic's lien law is to be liberally construed so as to give lien claimants the benefits intended by the legislature. Skyrme v. Occidental M. & M. Co., 8 Nev. 221. A repeal of an old law relating to mechanies' liens by a new law containing all the essential parts of the law repealed, does not destroy existing rights thereunder. Capron v. Strout, 11 Nev. 310. When the work is continuous, although done under different contracts, the lien is preserved by giving notice within sixty days after the work is completed. 2214. Liens on city lots. Idem. Where a foreman of a mine is employed to "boss" the men at work in a mine, keep their time and give them orders for their pay, his employment is of that kind that is protected under this law. Idem. County recorders are authorized to administer the oath and certify to the verification required in filing mechanics' liens. Arrington v. Wittenberg, 12 Nev. 99, 101. The lien law is to be liberally construed. A substantial compliance with its provisions is all that is required. Hunter v. Truckee Lodge, 14 Nev. 24, 27, 40, 44. The legislature intended to give subcontractors and material-men direct liens upon the premises for the value of their labor and materials regardless of payments on the principal contract made prior to the time within which the law required a notice of their claim to be recorded. Lonkey v. Cook, 15 Nev. 58. Cited, Gould v. Wise, 18 Nev. 266, 267 (3 P. 30). Where materials were furnished from time to time, as ordered on a running account, on an understanding that they were to be used in the construction of a building, and the material-man had reasonable grounds to expect that the materials would be ordered from time to time to finish the building, the materials were furnished under an entire and continuing contract. Tonopah Lumber Co. v. Nevada Amusement Co., 30 Nev. 445, 446, 456 (97 P. 636). While a material-man's lien can only legally exist when perfected as prescribed by the statute creating it, yet the statute, being remedial, must be liberally construed, and a substantial compliance is sufficient. Idem. SEC. 2. Any person who, at the request of the owner of any lot in any incorporated city or town, grades, fills in or otherwise improves the same, or the street in front of or adjoining the same, has a lien upon such lot for his work done and materials furnished. Kerr, C. C. P. 1191. 2215. Land subject to lien. SEC. 3. The land occupied by any building or other superstructure, railroad, tramway, toll road, canal, water ditch, flume, aqueduct, or reservoir, bridge, or fence, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment, is also subject to the lien, if at the commencement of the work, or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, or structure to be constructed, altered, or repaired; but if such person owned less than a fee simple estate in such land, then only his interest therein is subject to such lien. Kerr, C. C. P. 1185. Testimony showing that the land and reduction works had been leased together, and sold together, tends to prove that the property subjected to the liens has been treated as a unit and used for a common 2216. Priority of liens. purpose, and in the absence of any other testimony or objections, the court has the right to infer that the land so used and treated was reasonably convenient for the use of the reduction works. Gould v. Wise, 18 Nev. 254, 265 (3 P. 30). SEC. 4. The liens provided for in this chapter are preferred to any lien, mortgage or other incumbrance which may have attached subsequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished; also, to any lien, mortgage, or other incumbrance of which the lien holder had no notice and which was unrecorded at the time the building, improvement, or structure was commenced, work done, or the materials were commenced to be furnished; (every mortgage or incumbrance imposed upon, or conveyance made of, property affected by the liens herein provided for between the time when the building, improvement, structure, or work thereon was commenced, or the materials thereof were commenced to be furnished, and the expiration of the time herein fixed in which liens therefor may be filed whatever the terms of payment may be, shall be subordinate and subject to the liens in full herein authorized, regardless of the date of filing of said liens). As amended, Stats. 1899, 98. Kerr, C. C. P. 1186. Lien held subordinate to mortgage. Capron v. Strout, 11 Nev. 304. 2217. Duty of owner to file affidavit on completion-Time within which lien claim may be filed-Contents of same-Amendments-Substitution of parties. SEC. 5. It shall be the duty of the owner of any building, improvement, or structure, mentioned in section 1 of this act, upon or after the completion thereof, or of any alteration or repair thereof, to file or cause to be filed with the county recorder of the county where the same or some part thereof is situated, an affidavit, under the oath of himself or of some other person conversant with the facts, stating that such building, improvement or structure, or the alteration or repair thereof, as the case may be, has been completed, giving the date of such completion, and a description of the same sufficient for identification. If any such affidavit be filed before the building, improvement or structure, or the alteration or repair thereof, as the case may be, has in fact been completed, such filing shall be void and a mere nullity, and the time within which any claim of lien as hereinafter provided shall be filed, shall not commence to run until after such building, improvement or structure, or the alteration or repair thereof, as the case may be, has in fact been completed, and a valid and legal affidavit thereafter been filed. Every person claiming the benefit of this chapter shall, not earlier than ten days after the completion of his contract, or the delivery of material by him, or the performance of his labor, as the case may be, and not later than fifty days after filing of the owner or other person as aforesaid of the affidavit herein before provided for, or within fifty days after the performance of any labor in a mining claim, file for record with the county recorder of the county where the property or some part thereof is situate, a claim containing a statement of his demand after deducting all just credits and offsets, with the name of the owner or reputed owner if known, also the name of the person by whom he was employed or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charged with the lien sufficient for identification, which claim must be verified by the oath of himself or some other person. Upon the trial of any action or suit to foreclose such lien no variance between the lien and the proof shall defeat the lien or be deemed material unless the same shall result from fraud or be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases of immaterial variance the claim of lien may be amended, by amendment duly recorded, to conform to the proof. No error or mistake in the name of the owner or reputed owner contained in any claim of lien shall be held to defeat the lien, unless a correction of the lien in this particular shall prejudice the rights of an innocent, bona fide purchaser or encumbrancer for value. But upon the trial, if it shall appear that an error or mistake has been made in the name of the owner or reputed owner, or that the wrong person has been named as owner or reputed owner, in any such claim of lien, the court shall order an amended claim of lien to be recorded with the recorder where the original claim was recorded, and shall issue to the person who is so made to appear to be the original or reputed owner, a notice directing such person or persons to be and appear, within the same time as is provided by law for the appearance in other actions after the service of summons, and said notice shall be served in all respects as a summons is required to be served, before said court and to show cause why he should not be substituted in said claim of lien and in said suit in lieu of the person so made defendant and alleged to be owner or reputed owner by mistake, and to further show why he should not be bound by the judgment or decree of the court. And such proceedings shall be had therein as though the party so cited to appear had been an original party defendant in the action or suit, and originally named in the claim of lien as owner or reputed owner, and the rights of all parties shall thereupon be fully adjudicated. As amended, Stats. 1903, 51; 1911, 320. Kerr, C. C. P. 1187. In an action for the foreclosure of a mechanie's lien, where the complaint states that the work was done and materials furnished at the special instance and request of the agent of the defendant, a plea that the "plaintiffs ought not to be allowed to maintain this action" because they had obtained a judgment against the said agents, constitutes no defense to the action. Dickson v. Corbett, 11 Nev. 277. The fact that plaintiff's recovered a judg ment against the agent, only proves that he also made himself personally liable on the contract which he entered into on behalf of his principal. Idem. A complaint describing the property as a large building on certain lots in a certain block belonging to defendant, together with a convenient space of ground around the same, was held sufficiently specific. Idem. The claimant is only required to file his notice before the expiration of thirty days after the completion of the building. Hunter v. Truckee Lodge, 14 Nev. 24, 28, 30. It is not essential to the, validity of a mechanic's lien to specify the items of the account. It is sufficient to set forth a statement of the demand showing its nature and character and the amount due or owing thereon. If there are no special terms, time or conditions given in the contract, none need be stated in the lien. Lonkey v. Wells, 16 Nev. 271, 272, 276. A contractor must file his lien within sixty days after his contract is completed. Every other person entitled to a lien must file it within thirty days after the completion of the building. Idem. A mechanic's lien, although the act giving it is to be liberally construed, is purely of statutory creation, and can only be maintained by a substantial observance of, and compliance with, the provisions of the statute. Malter v. Falcon M. Co., 18 Nev. 209, 212, 213 (2 P. 50). The omissions in the notice and claim, of a mechanic's lien, as recorded, cannot, in essential particulars, be aided by any averments in the complaint, or by extrinsic evidence. Idem. It is essential to the validity of a lien, under the provisions of the statute, that the name of the owner, or reputed owner, of the building, improvement or structure, upon which the lien is sought to be enforced, should be stated. If the name of the owner is unknown that fact ought to be stated, and the name of the reputed owner given. These facts should be stated, independent of the description of the property, in a direct, clear and positive manner. Idem. The mere fact that a lien claimant has included in his statement charges for which the law allows no lien will not defeat that portion for which he is entitled to a lien when the charges are separately stated. Maynard v. Ivey, 21 Nev. 241, 244 (29 P. 1090). A statement claiming a mechanic's lien is sufficient, which describes the property sought to be charged, gives the name of the owner, the names of the persons by whom claimant was employed, and the total amount due after deducting all credits and offsets. A lien claimant is not required to particularize the number of days he has labored upon different parts of the property sought to be charged. Idem. Cited, State ex rel. N. T. G. & T. Co. v. Grimes, 29 Nev. 59. A mechanic's lien claim, stating that it is for "outside work on house and painting on inside blinds, $190" does not substantially comply with this section and is insufficient to support a lien. Porteous Decorative Co. v. Fee, 29 Nev. 375, 381 (91 P. 135). A material-man furnished materials as ordered, from time to time, by the contractors. Owing to strikes and the stringency of the money market, the work on the building ceased. Subsequently a room therein was finished according to the original plans. The material-man furnished materials when the work was resumed. Held, that the materials were furnished under a continuing contract, and the filing, within fifty days after the completion of the work, of a claim for a lien for all materials, was sufficient. Tonopah Lumber Co. v. Nevada Amusement Co., 30 Nev. 446, 456 (97 P. 636); Self & Sellman Co. v. Savage, 34 Nev. -. 2218. Liens upon separate buildings-Amount to be stated. SEC. 6. In every case in which one claim is filed against two or more buildings, mining claims, or other improvements owned by the same person, the person filing such claim must at the same time designate the amount due to him on each of such buildings, mining claims, or other improvements, otherwise the lien of such claim is postponed to other liens. The lien of such claimant does not extend beyond the amount designated, as against other creditors having liens by judgment or otherwise, upon either of such buildings or other improvements, or upon the land upon which the same are constructed. Kerr, C. C. P. 1188. 2219. Record of claim. SEC. 7. The recorder must record the claim in a book kept by him for that purpose, which record must be indexed as deeds and other conveyances are required by law to be indexed, and for which he may receive the same fees as are allowed by law for recording deeds and other instruments. Kerr, C. C. P. 1189. 2220. Limitation of lien as to time. SEC. 8. No lien provided for in this chapter binds any building, mining claim, improvement, or structure for a longer period than six months after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same; or, if a credit be given, then ninety days after the expiration of such credit; provided, nevertheless, that if there are other claims outstanding against the property, no time or credit shall be given upon the lien after the expiration of the six months in which proceedings are required to be commenced, which will tend to delay or postpone the collection of other claims or incumbrances against the property; but no lien continues in force for a longer time than two years from the time the work is completed by any agreement to give credit. Kerr, C. C. P. 1190 2221. Owner must post notices, or property will be responsible. SEC. 9. Every building or other improvement mentioned in section 1 of this act, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, or the intended construction, alteration or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon. Kerr, C. C. P. 1192. The interest of the owner of reduction works may be subjected to lien claims, notwithstanding the labor and materials have not been performed and furnished at his instance if knowing that alterations and repairs are being made by the lessee he fails to give notice that he will not be responsible therefor. Gould v. Wise, 18 Nev. 253, 258, 259, 265 (3 P. 30). Evidence that the owner had an agent, residing in the vicinity of the premises who personally visited the reduction works and knew that the work was being done and improvements being made, is prima facie sufficient to charge the owner with knowledge of that fact. Idem. Persons performing labor or furnishing material used in operating and "carrying on" reduction works, are entitled to The notice required by the section, to be effective, must be given by posting a notice in writing, proof of personal service being held not sufficient. Rosina v. Trowbridge, 20 Nev. 106 (17 P. 751). A complaint, in an action to foreclose a material-man's lien, brought against the owner, lessee, and contractors, which alleges that the owners at all times knew that the lessee was constructing a building, and did not at any time give notice that they would not be responsible therefor, sufficiently charges the owners with "knowledge," within this section. Tonopah Lumber Co. v. Nevada Amusement Co., 30 Nev. 445, 456 (97 P. 636). 2222. Recovery upon lien-Owner may recover from original contractor. SEC. 10. The contractor shall be entitled to recover, upon a lien filed by him, only such amount as may be due to him according to the terms of his contract after deducting all claims of other parties, for work done and material furnished, as aforesaid; and in all cases where a lien shall be filed under this chapter, for work done or materials furnished to any contractor, he shall defend any action brought thereupon at his own expense; and, during the pendency of such action, the owner may withhold from the contractor the amount of money for which such lien is filed; and in case of judgment against the owner or his property upon the lien, the said owner shall be entitled to deduct, from any amount due or to become due by him to the contractor, the amount of such judgment and costs; and if the amount of such judgment and costs shall exceed the amount due by him to the contractor, or if the owner shall have settled with the contractor, he shall be entitled to recover back from the contractor any amount so paid by him, the said owner, in excess of the contract price, and for which the contractor was originally the party liable. Kerr, C. C. P. 1193. A covenant in a bond, "to secure the plaintiff and keep it harmless from all liens and claims of liens." is a contract of indemnity and is not violated by simply permitting liens to be filed. It would only be broken when plaintiff was actually damnified by reason of liens or claims of liens. Carson Opera House Association v. Miller, 16 Nev. 333-336. 2223. Rank or order of liens. Plaintiff was not authorized to withhold any part of the contract price until suits to enforce the liens were pending, and it could not refuse to pay money according to the contract until the contractors were in default. Idem. Cited, Truckee Lodge v. Wood, 14 Nev. 293, 301. SEC. 11. In every case in which different liens are asserted against any property, the court, in the judgment, must declare the rank of each lien, or class of liens, which shall be in the following order, viz.: First-Labor. Second-All persons other than original contractors and subcontractors. Third-The subcontractors. Fourth-The original contractors. And the proceeds of the sale of the property must be applied to each lien, or class of liens, in the order of its rank. As amended, Stats. 1909, 103, Kerr, C. C. P. 1194. Cited, Arrington v. Wittenberg, 12 Nev. 101. 2224. Claims consolidated, when. SEC. 12. Any number of persons claiming liens may join in the same action; and when separate actions are commenced the court may consolidate |