I think the complaint sets forth but a single cause of action.
The plaintiff avers that he performed labor and furnished materials to repair three houses on the land of Matilda Moore. That he filed and served the notice required under chapter 478 of the Laws of 1862, on the 16th of November, 1876, under and by which he acquired a lien upon the premises described in the complaint.
The complaint further avers that Matilda Moore, on that day, was the owner of the premises.
The complaint further avers that on the 15th of November, 1875, the defendant Matilda Moore, and her husband, executed and delivered a paper, purporting to be a deed, to one Joseph G. Moore, and on the same day Joseph G. Moore executed a paper, purporting to be a mortgage thereon, to Benjamin P. Moore. Also on the same day he executed a pretended mortgage thereon to Matilda Moore.
That both deed and mortgages were designed by the parties to them to defeat plaintiff’s lien; that they were fraudulent, without-any consideration and void.
Under these averments, by our statute, the pretended papers were, and are, void as against the plaintiff. (2 R. S. [2d ed., m. p.], 137, §1.)
The cause of action is simply that plaintiff has a lien as of the 16th of November, 1875, and he asks its enforcement under the act above referred to. The plaintiff has inserted in his complaint only “ such other matters and allegations as may be material and proper to establish the claim and cause of action of the claimant and plaintiff,” as he was authorized to do by section 3 of chapter 478, Laws of 1862.
Unless the plaintiff can maintain his complaint the lien law is useless. By giving a fraudulent and void deed the owner may prevent a claimant from enforcing a lien. The lienor must prove ownership at the date of filing his notice. He cannot do that without proof to destroy the deed. To do that so as to effectually free the land from its operation he must have the grantees of the void papers as parties.
*21If the prayer for judgment upon tbe facts alleged is for too much, it is not a ground of demurrer.
Order sustaining demurrer overruled, witb costs, and demurrer overruled, with costs, with leave to defendants to answer in twenty days on payment of costs.
GilbeRt, J., concurred. Dyeman, J., not sitting.Order sustaining demurrer reversed, with costs, and demurrer overruled with costs.