On Petition for Rehearing.
Howard, J.We were of opinion that the validity of the mechanic’s lien law of this State was fully considered and affirmed in the original opinion. That law does not provide for depriving an owner of his property without his consent. On the contrary, the law, which enters into and forms a part of his building contract, is notice to Mm that his land and the building to be erected thereon are liable to a lien for the value of the labor and materials which may enter into its construction. He voluntarily contracts for this labor and material, with notice from the statute of the inchoate lien thereby authorized. The statute, moreover, in the interest of the owner, prevents the fixing of the lien unless notice be given him within sixty days from the time of the furnishing of the labor or material. His property is therefore not taken without due process of law. See Colter v. Frese, 45 Ind. 96.
So it is said in Phillips Mechanics’ Liens, 3d ed. section 33a, “A statute giving a sub-contractor a direct lien is not unconstitutional as forfeiting the owner’s property to persons with whom he never contracted. The owner contracts with reference to the law which gives the lien for work and labor fur*103nished to Ms contractor by journeymen and others.”
It is further said by the authority cited, and in the same section, “that a provision in a mechanics’ lien law which allows a laborer, mechanic or workman, thirty days after the building is completed or the contract of such laborer, mechanic or workman shall expire or be discharged, in which to give the owner written notice that a lien is claimed for such labor and material as have been furnished the contractor, does not render the act unconstitutional. The owner may, by contract or indemnity bond, protect himself against double payment for such labor and material.” The same author, also in said section, observes: “In Wisconsin it is held that a law giving sub-contractors a lien without regard to the contract price or sum due the contractor is valid. The property has been enhanced in value by the labor and materials.” Mallory v. LaCrosse Abattoir Co., 80 Wis. 170.
And, in answer to what is said by counsel for appellant on the authority of Spry Lumber Co. v. Sault Savings Bank Loan and Trust. Co., 77 Mich. 199, we may add, also, from Phillips on Mechanics’ Liens, same section: “The consent of the owner is the basis of a lien. His property can be taken only by his consent or default. A law which gives a mechanic’s lien for labor or materials, regardless of the contract of the owner, so that his property may be taken to pay for service he never bargained for, nor consented to, is unconstitutional.” And the Michigan statute to which counsel refer is instanced by the author as one subject to such infirmity, and hence void.
The statute in the case at bar, however, is one with' reference to which appellants entered into their building contract, and according to which they consented to the lien that followed. Such consent included an *104agreement that those who should furnish to the contractors and sub-contractors the material which should go into the building might have sixty days after furnishing the same within which to give notice of their intention to hold such lien. We have no doubt of the constitutionality of the law.
As to the sufficiency of the complaint in relation to the furnishing of the material, it may be said, as was said by Judge Mitchell in Neeley v. Searight, 113 Ind. 316: “While the averments in that regard are not as direct and specific as they might have been, they are nevertheless sufficient. * * * Taking these averments altogether, and the inference necessarily arises that the materials were furnished for, and used in, the erection of the dwelling. Lawton v. Case, 73 Ind. 60.”
So for the description of the property, while imperfect, yet we think it satisfies the liberal provision of the statute, section 7257, R. S. 1894 (Acts 1889, 258), that “Any description of the lot or land in a notice of a lien will be sufficient if, from such description, or any reference therein, the lot or land can be identified.” There was certainly sufficient in this description to identify the lot. In fact, it was identified, and that without any shadow of doubt or uncertainty.
By force of the statute, as soon as the notice is given, the lien created at once relates back to the date when the labor was first done, or the materials first furnished. As this lien is upon the land as well as upon the building, we are therefore unable to perceive how the lien could be lost by the injury, removal or destruction of the building. The laborer or materialman is responsible for none of these things. They have not the custody or control of the property. One who worked upon the building or furnished materials for it would not, on account of the destruction *105of the property, lose his right to a personal claim against the person with whom he had contracted to do snch work or furnish such material. But the statute, as we have seen, provides for a lien on the property as a security for such personal claim; and the lien no more than the claim can be lost by any injury to the building. The purpose of the statute would often be liable to be defeated, if by a removal of the building from the land, or by its destruction, the lien should also be destroyed.' See Phillips Mechanics’ Liens, sections 12 and 304a, and authorities cited. In the latter section the author says: “If the lien is once fixed on the realty, it clings to the land after the destruction of the building. Moreover, the lien attaches to the money received on the sale of the land and remnants of the mill and machinery.” Citing Paddock v. Stout, 121 Ill. 571.
Filed February 31, 1896.The petition is overruled.