Under a somewhat similar statute in New York city, the court of appeals held in Freeman v. Cram (3 N. Y. [3 Comst.], 305), that a mechanics’ lien only continued one year from the commencement thereof, and was not prolonged by a judgment against the owner of the property, obtained within the year. Such a judgment appears to have been obtained in that case against one Arment, the original contractor and owner, who having died, this suit was instituted by way of scire facias against the defendant as subsequent owner and terre-tenant, Arment having sold the premises to him, he having purchased the same in good faith.
The claimant’s lien, if he had one, having thus expired on the 6th day of Seifiember, 1868, over eight months before judgment was obtained in this action (for the provision for the continuance of the lien is substantially the same as in the New York statute), it is contended on the part of the' defendant, that the plaintiff was not at that time, viz: May 20, 1869, entitled to any judgment whatever. The remedies created in the mechanics’ lien law are of a purely statutory and extraordinary nature, and the provisions for their enforcement must be strictly construed (Roberts v. Fowler, 3 E. D. *458Smith, 632). It authorizes a summary proceeding to obtain a judgment, and to enforce payment of claims due to contractors and laborers, and declares the court open at all times for the purpose of facilitating the collection or enforcement of such claims (Act of 1854, 1086, § 6), and claimants must take advantage of the facilities afforded them to recover and docket their judgments, and I think they must accomplish it during the life of their liens in one year or else they lose their claims against the property, so far as they depend upon the provisions of that act. This statute of 1854, page 1086, as amended by 1858, page 324, which amendment simply extends the provisions of the act to all the counties of the State, except New York and Erie, under which the lien was filed and proceedings commenced, authorizes the recovery of a judgment and the docketing thereof, and provides that the lien shall continue until the expiration of one year, unless sooner discharged ; but that when a judgment is rendered • therein, within the year, and docketed, it shall be a lien upon the real property of the party, to the extent that other judgments are a lien thereon (section 20 of said act of 1854). There is no provision-in this act that judgment may be entered after the expiration of the year, and probably because one year was deemed sufficient time for a contractor or laborer to collect his claim, to enforce it by judgment and execution. The proceeding is summary, and the court is open at all times to aid him, and with proper diligence it was probably supposed he could not fail to obtain his judgment within the year, if entitled to it.
No judgment having been recovered or docketed by the claimant in this case, on or before September 6, 1868, it seems to me he was not, at any time after that, entitled to any judgment against the property described in the lien (Freeman v. Cram, 3 N. Y. [3 Comst.], 305, 309). In this case of Freeman v. Cram, 3 IV". Y. [3 Corns Y\, 305, an .action was brought by Freeman & Wait, the contractors, for the enforcement of a lien *459under the statute of 1844 ; and the question raised for the decision of the court of appeals was, whether the claimant had any subsisting lien under that statute, or whether it expired at. the end of the year ; and it was held by the court, that it expired at the end of the year, and was not prolonged b.y an action commenced within the year, or by a judgment obtained within the year, and that a judgment' subsequently obtained did not relate back to it and keep the lien alive.
The corresponding section of the act of 1844 (under which this last case was decided), and the act of 1854 (under which these proceedings are commenced), in relation to the duration of the time, are as follows :
Act of 1844, § 3. “The lien so created by this act shall take effect from such filing and such service of the said notice, and shall continue in full force for the space of one year thereafter,” &c.
Act of 1854, § 20. “Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court, or some legal act of the claimant in the proceedings,” &c.
The claimant, on May 29, 1869, when the judgment was obtained in this action, was not, I think, entitled to any judgment whatever. He could not recover under the lien, as that ha 1 expired (Freeman v. Cram, 3 N. Y. [3 Comst.], 305). There being no lien, and the proceedings being statutory and special, there would seem to be no foundation for the proceedings to foreclose (Beals v. Congregation, &c., 1 E. D. Smith, 654; Cronkright v. Thomson, Id., 661; Gridley v. Rowland, Id., 670). He could not, I think, use the proceedings commenced to foreclose the lien, for any other purpose than such as the statute contemplates (Sinclair v. Fitch, 3 E. D. Smith, 677, 691; Foster v. Poillon, 2 Id., 556; Quimby v. Sloan, Id., 594; Lewis v. Varnum, 3 Id., 690, note).
The statute authorized him to proceed against the property on which he had acquired a lien, but not—at least not except in connection with such a lien—against *460the defendant personally ; and lie had no right, and the court no power to grant hint the right to change the nature of the proceedings (Sinclair v. Fitch, 3 E. D. Smith, 677, 691; Lewis v. Varnum, 3 Id., 690, n.; Quimby v. Sloan, 2 Id., 594, 609).
It has been held, in the Hew York court of common pleas, that the proceeding to foreclose a mechanic’s lien is a proceeding in rem, not in personam, and operates only as a foreclosure of a lien, and not as an action for the collection of a debt (Randolph v. Leary, 3 E. D. Smith, 637; 4 Abb. Pr., 205).
These actions, it is said, are purely proceedings in rem, founded on statute, and can be used for no other purpose when this purpose fails (Quimby v. Sloan, 2 E. D. Smith, 609; Cronkright v. Thomson, 1 Id., 661; Cox v. Broderick, 4 Id., 721).
This was a proceeding in rem, primarily at least, against specific property subject to this lien, which proceeding against the property existed by virtue of the lien created by statute. If the lien expired before his judgment could be had, then it is claimed, with much force, that the right to recover the property failed, and no judgment whatever could be -had. If the lien had expired on September 6,1868, being one year after it was created, then on May 29, 1869, when judgment was obtained, there was no lien. Consequently, it is contended no judgment could be rendered against defendant on the property in question, as the foundation for the proceedings to foreclose was swept away (Beals v. Congregation, &c., 1 E. D. Smith, 654; Cronkright v. Thomson, Id., 661; Gridley v. Rowland, Id., 670; Quimby v. Sloan, 2 Id., 594, 609).
“ Having called the defendant into court in a peculiar mode prescribed by statute, for a particular purpose, only applicable to a specific claim, if the lien fails, the plaintiff cannot convert his proceedings into an ordinary action for the recovery of money upon a personal contract, and insist upon the defendant’s personal liability” *461(Quimby v. Sloan, 2 E. D. Smith, 609; Bailey v. Johnson, 1 Daly, 61).
It would seem to be beyond doubt, under section 20 of flie act of 1854, and the decision in Freeman v. Cram, 3 N. Y. [3 Comst.], 305, that this lien had failed on May 29, 1869. The judgment, it would seem, could only sell the right, title and interest of defendant when the lien was filed, not when judgment was docketed (Act of 1854, p. 1089, §§ 11, 12; Smith v. Corey, 3 E. D. Smith, 642; Doughty v. Devlin, 1 Id., 625; see, also, Lenox v. Trustees, &c., 2 Id., 673; Doughty v. Devlin, 1 Id., 644; Hauptman v. Catlin, &c., 20 N. Y., 247).
The plaintiff claims, that although his mechanic’s lien has ceased to be operative by reason of failing to foreclose within a year, still he can use the proceedings he has commenced to foreclose, after the expiration of the lien, as an action on contract to recover the claim (which the lien secured), and obtain a judgment which binds the defendant’s estate generally, from the day of its docketing ; or, in other words, that he can abandon his lien, and recover a personal judgment against defendant, which will bind his. property as if the action had been originally commenced on the simple contract, irrespective of the lien. His theory is based upon- Laws of 1854, p. 1090, § 14, which says, that after issue joined, “the action shall thereafter be governed and tried in all respects as upon issues joined, and judgment rend ere A in other actions arising on money demands upon contracts, in said courts, and the judgment thereupon shall be enforced, if for the claimant, as provided by the eleventh section of this act.” . . .
But it must be borne in mind that this same lan. * guage was used in Laws of 1851, p. 955, § 8, regulating mechanic’s liens in New York city, and yet the court held, in Quimby v. Sloan, 2 E. D. Smith, 609, and Sinclair v. Fitch, 3 Id., 691, both decided under Laws of 1851, p. 955, § 8, that notwithstanding that section 8 of Laws of 1851, p. 955, the proceedings could no„t be *462used to recover a personal judgment against the defendant ; that if the-liens had expired or failed, no judgment. whatever could be rendered for plaintiff, and that plaintiff could hot convert Ms proceedings into an action for the recovery of money upon a personal contract, and insist upon a personal liability.
Those cases were where the contractor sued the owner and established his claim, but failed to establish any lien. Section 8 of Laws of 1851, p.. 955, under which Quimby v. Sloan, 2 E. D. Smith, 609; Sinclair v. Fitch, 3 Id., 691, and Randolph v. Leary, Id., 637, were decided, read as follows : “After issue joined, the action shall be governed, tried, and judgment thereon enforced in all respects, in the same manner as upon issues joined and judgment rendered in all other civil actions for the recovery of moneys in said court.”
So it will be perceived almost the very identical language is used in section 8 of the Laws of 1851, p. 955, as is used in section 14 of the Laws of 1854; and the court held, in Quimby v. Sloan, 2 E. D. Smith, 609, that section 8 of the Laws of 1851 does not allow a personal judgment against'the defendant.
The judgment is designed to enforce the lien. This proceeding is called a proceeding to enforce the lien (sections 6 and 11 of the act of 1854). The execution to be issued is for the enforcement of the claim (section 11 of the act of 1854). By section 1 the extent of the lien is confined0 to the right, title and interest of the owners existing at the time of filing the notice, and the form of the judgment and execution will require adaptation to this limitation. And when the legislature, in the act in question, have likened the proceedings herein to proceedings upon issues joined and judgments rendered in other civil actions for the recovery of moneys, .they must be deemed to mean civil actions for the recovery of money secured by liens upon property, in some sort resembling the liens contemplated by this statute (Doughty v. Devlin, 1 E. D. Smith, 644).
*463Again: in Conkright v. Thomson, 1 E. D, Smith, 663, decided under section 8 of the Laws of 1851, it is said, the proceeding is not an action to recover money from the defendant personally-for goods sold to a contractor, or labor done for him ; it is instituted to foreclose a lien upon property. It is a proceeding in rem, and the first step is to prove a lien, for without that, there is no foundation for the proceeding.”
Section 20 of the Laws of 1854, p. 1091, by providing that the judgment, if obtained within the year, shall become a lien on the real estate of the party to the extent that other judgments are, would seem to intend to exclude a judgment obtained subsequently. It would seem to intend that no judgment can be rendered after the year, because it can only be a lien provided it is ob-' tained in the action within a year.
No judgment was rendered in this action until eight months after the lien had expired ; that is, eight months after the year during which the lien existed had expired ; or, in other words, the lien was filed September 6, 1867; it expired September 6, 1868, and judgment was rendered May 29, 1869, eight months after the expiration of the year and lien.
Then these conclusions from the decisions would seem to be warranted.
First. The lien expired September 6, 1868.
Second. The judgment obtained May 29, 1869, did not relate back, and authorize a sale or prolong the lien.
Third. If there was no lien on May 29, 1869, because it had expired, then there-was no lien to foreclose, and could be no valid proceeding for that purpose, and no judgment could be rendered in favor of plaintiff.
Fourth. No personal judgment could be rendered in favor of plaintiff1 in these proceedings.
Fifth. If the lien had expired, then no right exists to sell the property in question, as a judgment does not resuscitate it, and the judgment within a year only de*464termines the amount of the lien and the order of foreclosure. The judgment does not take effect, as in ordinary cases, from the time, and by force, of its docketing, but rather by force of the lien. The judgment does not make the lien. That exists by the notice as filed. The judgment simply determines the amount, and orders sale. Hence, if there be no lien, there is nothing to determine ; and the docket determining nothing, a judgment is irregular and void. Hence, there being no lieu existing, the judgment cannot restore it; and the judgment rendered not being itself an authorized lien, under the statute, against defendant’s property, cannot be applied and enforced for any other purpose.
If the plaintiffs have any claim against the defendant, they must proceed in the ordinary way to enforce it; and defendant being perfectly solvent, worth, as stated in his affidavit, some twenty-four thousand dollars over and above debts, there is no hardship in compelling them so to do, and no equity can intervene to prevent it.
The judgment does not become a lien against the property of the defendant by force of its being recovered and docketed, but simply determines the amount of the lien, and directs a sale of the right, title, and interest in the property, when the lien was filed (See Freeman v. Cram, 3 N. Y. [3 Comst.], 308, 309). The lien of a judgment on contract, and on a mechanic’s lien, are different, and not connected with each other, only so far as a judgment and sale are made under the lien within a year. The lien is not so much by force of the judgment as of the mechanic’s lien. The judgment does not give truth to the lien, but only provides the means to enforce it. The lien expires by virtue of the statute, and not independently of the judgment. The lien does not take effect when judgment is docketed, but relates back to the time when the mechanic’s lien was filed. Hence, when the judgment was docketed, the lien had expired, then there was no lien on defen*465dant’s property which the judgment could sell or relate back to. There was no lien by force of the judgment, simply; for that created no lien, and bound no property, unless the mechanic’s lien was in force.
There was then a want of power in the court to order judgment; that is, the court had no jurisdiction to enforce the lien, as the lien had already expired. In such case a motion to set aside and vacate the judgment is proper, and the party is not driven to an appeal from the judgment. The judgment being not authorized by law or the statute in question, and not in conformity to it, I think the remedy by motion was proper (See Hallett v. Righters, &c., 13 How. Pr., 43; Macomber v. Mayor, &c. of N. Y., 17 Abb. Pr., 36, note; Simonson v. Blake, 12 Id., 331; Waters v. Langdon, 40 Barb., 408, 415).
The objection to the judgment is not to its irregularity, but that it is altogether unauthorized, and void or voidable for want of authority in the court to render it in such cases; The judgment should be vacated on motion (See Simonson v. Blake, 12 Abb. Pr., 331, 333, opinion).
Defendant was not bound to appear on the trial and raise this question, as it strikes at the root of the whole proceedings. It is a jurisdictional defect, which can be taken advantage of at any stage of the proceedings. It is not a question of irregularity simply which the party could waive, by not raising it upon the trial, but a question of want of power in the court to order judgment, as the foundation of the action had been, swept away. The lien which founded the action and the plaintiff’s right to recover, was of no effect or validity. It had expired. Consequently no judgment could be rendered under the lien. It could not be used as a foundation for the execution issued upon it (Quimby v. Sloan, 2 E. D. Smith, 609; Cronkright v. Thomson, 1 Id., 661; Cox v. Broderick, 4 Id., 721).
Nor to recover upon contract the debt which the *466lien, professed to secure. So the want of power is apparent. Defendants’ remedy by motion to vacate a judgment without authority seems to be proper. The judgment does not conclude him, as it is without jurisdiction.
It has been held in various cases, that where a judgment is void or voidable, the proper way is to move to set aside, or vacate it (Watkins v. Abrahams, 24 N. Y., 72; Brittin v. Wilder, 6 Hill, 242; Bennett v. Davis, 6 Cow., 393; Bennett v. Davis, 3 Id., 68; Lambert v. Converse, &c., 22 How. Pr., 265).
Upon the authorities quoted, anti a proper construcion of the statute in qeestion, I think the motion should be granted, and the judgment and subsequent proceedings vacated and set aside with costs.
The order appealed from, should therefore be reversed with costs.