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TITLE
85 DEBTOR-CREDITOR RELATIONSHIP
CHAPTER 7 LIENS
LABORERS, MATERIALMEN, ARCHITECTS, SURVEYORS, ENGINEERS, WATER
WELL DRILLERS AND CONTRACTORS
85-7-131 Persons Entitled to Lien, Property Subject
to Lien, Subdivisions, Time of Commencement of Lien
85-7-132 Liens of Oil and Gas Board
85-7-133 Recording, Indexing
85-7-135 Authorization by Owner
85-7-137 Improvement by Tenant
85-7-139 Recording of Construction Contracts
85-7-141 Foreclosure Action, Limitations
85-7-143 Parties
85-7-145 Summons
85-7-147 Answer, Counterclaim
85-7-149 Trial, Evidence, Practice
85-7-151 Judgment Against Builder, Execution, Attorneys Fees
85-7-153 Execution
85-7-155 Sale
85-7-157 Sale, Railroad
LIEN ON AMOUNT DUE CONTRACTOR
85-7-181 Lien Against Construction Funds, Suit, Costs and
Attorneys Fees
85-7-183 Assignments of Construction Funds
85-7-185 Performance and Payment Bond, Actions
85-7-187 Suit by Obligee, Actions by Claimants
85-7-189 Time for Suit on Bond
85-7-191 Intervention in Suit on Bond
85-7-193 Distribution Prorata, Attorneys Fees
85-7-195 Summons, Service
85-7-197 Claim in Lis Pendens Record, Requirements
85-7-199 Satisfaction of Lien
85-7-201 Filing without Just Cause, Forfeiture, Expungement
GENERAL
PROVISIONS
85-7-261 Lien Rights, Assignment
85-7-263 Payment of Liens in Proportion
85-7-265 Justice Court Proceedings
MISSISSIPPI CODE
TITLE 85 DEBTOR-CREDITOR RELATIONSHIP
CHAPTER 7 LIENS
LABORERS, MATERIALMEN, ARCHITECTS, SURVEYORS, ENGINEERS,WATER
WELL DRILLERS AND CONTRACTORS
85-7-131 Persons Entitled to Lien, Property Subject to Lien,
Subdivisions, Time of Commencement of Lien
Every house, building, water well or structure of any kind,
and any fixed machinery, gearing or other fixture that may
or may not be used or connected therewith, railroad embankment,
erected, constructed, altered or repaired, and every subdivision
of property or subdivided property which required services,
designs or construction in designing or laying out of streets
or subdividing or construction of streets, sewerage, water
or other utilities to be furnished by the said subdivision
or by the various owners or holders or creators of said subdivision
or subdivided property or individual lot or lots in connection
therewith, whether inside of a municipality or outside thereof,
shall be liable for the debt contracted and owing, for labor
done or materials furnished, or architectural engineers’
and surveyors’ or contractors’ service rendered
about the erection, construction, alteration or repairs thereof;
and debt for such services or construction shall be a lien
thereon. The architects, engineers, surveyors, laborers, and
materialmen and/or contractors who rendered services and constructed
the improvements shall have a lien therefore. Further, as
to oil and gas wells, the operator thereof shall have such
a lien upon the interest of each nonoperator owner of an interest
in the mineral leasehold estate for such nonoperator’s
proportionate part of such labor, material and services rendered
by the operator or for the operator’s account in behalf
of each nonoperator in the drilling, completion, recompletion,
reworking or other operations of such oil and gas well. If
such house, building, structure, or fixture be in a city,
town or village, the lien shall extend to and cover the entire
lot of land on which it stands and the entire curtilage thereto
belonging; or, if not in a city, town or village, the lien
shall extend to and cover one (1) acre of land on which the
same may stand, if there be so much, to be selected by the
holder of the lien. If the structure be a water well, the
lien shall extend only to all pumps, pipes, equipment therein
and all water well appurtenances. If the structure be an oil
or gas well, the lien shall extend to the nonoperator’s
interest in the mineral estate and the fixtures and equipment
in the producing unit assigned such well by the state oil
and gas board. If the structure be a railroad or railroad
embankment, the lien shall extend to and cover the entire
roadbed and right-of-way, depots and other buildings used
or connected therewith. If the services of the architect,
surveyor, engineer, laborers, materialmen or of the contractors
shall be upon the whole subdivision, the lien shall extend
to and cover the entire subdivision; but if a part only of
the land is subdivided and laborers’, materialmen’s,
architects’, surveyors’ or engineers’ services
are required and contractors are employed, then the lien shall
extend to only that portion of said property upon which the
services were required or upon which or in connection with
which the work was done or the materials were furnished. Such
lien shall take effect as to purchasers or encumbrancers for
a valuable consideration without notice thereof, only from
the time of commencing suit to enforce the lien, or from the
time of filing the contract under which the lien arose, or
notice thereof, in the office of the clerk of the chancery
court, as hereinafter stated; delivery of material to the
job is prima facie evidence of its use therein, and use of
water from a water well is prima facie evidence of acceptability
of well. In the case of oil and gas wells, such lien shall
take effect as to purchasers or encumbrancers for a valuable
consideration without notice thereof, only from the time of
filing notice of such lien as provided by section 85-7-133.
85-7-132
Liens of Oil and Gas Board
Every building, well or structure of any kind, and any fixed
machinery, gearing or other fixture that may or may not be
used or connected therewith, and all fixtures and equipment
in the producing unit assigned such well by the Oil and Gas
Board shall be liable for any penalty, civil fine or other
expense arising from the violation of any statute of this
state with respect to the conservation of oil and gas, or
any provision of Sections 53-1-1 through 53-1-47 and Sections
53-3-1 through 53-3-21, or any rule, regulation or order made
by the board thereunder. The Oil and Gas Board may use the
provisions of this chapter to enforce any such lien. The Oil
and Gas Board shall perfect such lien in the county or counties
where the property or equipment involved in the violation
is located. Such lien shall take effect as to purchasers or
encumbrancers for a valuable consideration without notice
thereof only from the time of filing notice of such lien as
provided by Section 85-7-133.
85-7-133
Recording, Indexing
Each of the several chancery clerks of this state shall provide
in his office, as a part of the land records of his county,
a record entitled “Notice of Construction Liens”
wherein notices under Section 85-7-131 shall be filed and
recorded, and such liens, as provided hereunder, shall not
take effect unless and until some notation thereof shall be
filed and recorded in said record showing a description of
the property involved, the name of the lienor or lienors,
the date of filing, if and where suit is filed, and if and
where contract is filed or recorded.
85-7-135 Authorization by Owner
The lien declared in section 85-7-131 shall exist only in
favor of the person employed, or with whom the contract is
made to perform such labor or furnish such materials or render
such architectural service, and his assigns, and when the
contract or employment is made by the owner, or by his agent,
representative, guardian or tenant authorized, either expressly
or impliedly, by the owner.
85-7-137
Improvement by Tenant
If such house, building, structure, or fixture be erected,
constructed, altered, or repaired at the instance of a tenant,
guardian, or other person not the owner of the land, only
the house, building, structure, or fixture, and the estate
of the tenant or such other person, in the land, shall be
subject to such lien, unless the same be done by the written
consent of the owner.
85-7-139 Recording of Construction Contracts
When the contract by virtue of which the house, building,
structure, fixture, railroad, or railroad embankment may be
erected, constructed, altered, or repaired, shall be in writing,
it may be acknowledged and recorded as deeds and other instruments.
If the contract relate to a house, building, structure, or
fixture, it shall be filed for record in the office of the
clerk of the chancery court of the county in which the land
on which it stands is situated; if the contract relate to
a railroad or railroad embankment, it shall be filed for record
in the office of the clerk of the chancery court of each county
in which the work is to be done; if the contract relate to
a boat or water craft, it shall be filed for record in the
office of the clerk of the chancery court of the county in
which the work is done.
85-7-141 Foreclosure Action, Limitations
Any person entitled to and desiring to have the benefit of
such lien shall commence his suit in the circuit court of
the county in which the property or some part thereof is situated,
if the principal of his demand exceeds two hundred dollars,
within twelve months next after the time when the money due
and claimed by the suit became due and payable, and not after;
and the suit shall be commenced by petition, describing with
reasonable certainty the property upon which the lien is averred
to exist, and setting out the nature of the contract and indebtedness,
and the amount thereof; and the plaintiff shall file therewith
in all cases, except where the whole work or materials, or
both, were furnished in pursuance of a written contract for
an aggregate price, a bill of particulars exhibiting the amount
and kind of labor performed, and of materials furnished, and
the prices at which and times when the same were performed
and furnished; and such suits shall be docketed and conducted
as other suits in said court, and may be tried at the first
term.
85-7-143 Parties
All persons having an interest in the controversy, and all
persons claiming liens on the same property, by virtue of
this chapter, shall be made parties to the suit; and should
any necessary or proper party be omitted, he may be brought
in by amendment, on his own application or that of any other
party interested; and claims of several parties having liens
on the same property may be joined in the same action.
85-7-145 Summons
The defendants shall be summoned, as in other actions at law,
to appear and defend the action; and in case any necessary
party defendant shall be a non-resident of or absent from
the state, or cannot be found, he may be made a party by publication,
as in cases of non-resident or absent defendants in chancery,
requiring him to appear on a day to be therein named; and
in default of appearance, the same proceedings shall be had
as if such defendant had been duly summoned and made default.
85-7-147
Answer, Counterclaim
The defendants, or any of them, by answer to the petition,
may make any defense they may have against the demand of the
plaintiff, and also any counter-claim against him touching
the subject-matter of the suit. And should any defendant claim
to have a lien upon the same property, for materials furnished
or labor done thereon, he may present the same by his answer;
and the cause shall be at issue without a replication, and
the parties shall be confined at the trial to the cause of
action and defense set forth in the pleadings.
85-7-149
Trial, Evidence, Practice
The circuit court may direct the formation of such issues,
to be tried before a jury, as may be necessary for the determination
of all matters controverted in the pleadings; and such issues
shall be tried by the same rules of evidence and practice
that prevail in other cases at law; and the court may set
aside verdicts and grant new trials and give judgments according
to the justice of the case.
85-7-151
Judgment Against Builder, Execution, Attorneys Fees
In case judgment be given for the plaintiff against the builder,
it shall, in case he was actually served with process, be
entered against him generally, with costs, as in other cases,
and with attorney’s fees as provided below, and with
a special order for the sale of the property upon which the
lien exists for the payment thereof, and for an execution,
as in other cases, for the residue of what may remain unpaid,
after the sale of the property; and if the defendant be brought
in by publication only, and have not appeared, the judgment
shall be entered specially for the debt and costs, to be made
of the property in the petition described; and in case a general
judgment be not given against the builder, such proceedings
or recovery shall not be a bar to any suit for the debt, except
for the part thereof actually made under such recovery. When
judgment is rendered in favor of the plaintiff against the
builder, the builder shall be liable for reasonable attorney’s
fees to be set by the judge for the prosecution and collection
of such claim. The provisions of this section allowing the
award of attorney’s fees shall only apply to actions
the cause of which accrued on or after July 1, 1987.
85-7-153
Execution
When the judgment shall be against the house, building, structure,
or fixture and land, or against the same without the land,
or against a railroad, or railroad embankment, a special writ
of execution shall issue, to make the amount recovered by
sale of the property, which shall be described therein; and
when both a general and special judgment shall be given, both
writs may be issued, either separately or combined in one,
or one may be issued after the return of the other for the
whole or the residue, as the case may require.
85-7-155
Sale
If such special writ of execution be for the sale of a house,
building, structure, or fixture and the land, or for the sale
of the same without the land, the officer shall levy on, advertise,
sell, and convey the same as in other cases of land levied
on for debt; and if the sale be of the house, building, structure,
or fixtures alone, and the same shall have been erected or
constructed and put on the land subsequently to a former encumbrance
on the land, the purchaser shall acquire the same free from
such former encumbrance, and his purchase shall authorize
him to enter and remove such house, building, structure, or
fixture from the land with reasonable dispatch; but if the
house, building, structure or fixture so sold, or sold with
the land, shall have been simply altered or repaired subsequently
to a former encumbrance on the land, the purchaser shall acquire
the same subject to such encumbrance, unless the encumbrancer
consented in writing to the alteration or repairs, in which
case the house, building, structure, or fixtures so altered
or repaired shall be sold free from such encumbrance, and
with the right in the purchaser to enter and remove the same.
If the land be sold also, the purchaser shall acquire such
estate therein as the owner or builder, as the case may be,
had at the time the lien to enforce which the sale is made
attached thereon, or at any time afterwards, subject to prior
encumbrances; but buildings, structures, or fixtures erected
or constructed and put on the land subsequently to prior encumbrances
shall pass to the purchaser as if the sale were of such buildings,
structures, or fixtures alone.
85-7-157 Sale, Railroad
If the special writ of execution be for the sale of a railroad
or railroad embankment, the officer shall levy on, advertise,
sell, and convey the same as in case of land levied on for
debt; and where the property may be in several counties, the
officer may sell the same and the right of way, and all depots
and other buildings used or connected therewith, as if the
same were situated wholly within his county, and the purchaser
shall acquire the property free from all prior encumbrances
saving the rights of those having concurrent liens under this
chapter.
LIEN ON AMOUNT DUE CONTRACTOR
85-7-181 Lien Against Construction Funds, Suit, Costs and
Attorneys Fees
When any contractor or master workman shall not pay any person
who may have furnished materials used in the erection, construction,
alteration, or repair of any house, building, structure, fixture,
boat, water craft, railroad, railroad embankment, the amount
due by him to any subcontractor therein, or the wages of any
journeyman or laborer employed by him therein, any such person,
subcontractor, journeyman or laborer may give notice in writing
to the owner thereof of the amount due him and claim the benefit
of this section; and, thereupon the amount that may be due
upon the date of the service of such notice by such owner
to the contractor or master workman, shall be bound in the
hands of such owner for the payment in full, or if insufficient
then pro rata, of all sums due such person, subcontractor,
journeyman or laborer who might lawfully have given notice
in writing to the owner hereunder, and if after such notice,
the contractor or master workman shall bring suit against
the owner, the latter may pay into court, the amount due on
the contract; and thereupon all persons entitled hereunder,
so far as known, shall be made parties and summoned into court
to protect their rights, contest the demands of such contractor
or master workman and other claimants; and the court shall
cause an issue to be made up and tried and direct the payment
of the amount found due in accordance with the provisions
hereof; or in case any person entitled to the benefits hereof,
shall sue the contractor or master workman, such person so
suing shall make the owner and all other persons interested,
either as contractors, master workmen, subcontractors, laborers,
journeymen or materialmen, so far as known, parties to the
suit (and any such party not made a party in any suit hereunder
authorized may intervene by petition), and, thereupon the
owner may pay into the court the amount admitted to be due
on the contract or sufficient to pay the sums claimed, and
the court shall cause an issue to be made up and award the
same to the person lawfully entitled; in either case the owner
shall not be liable for costs; but if the owner, when sued,
with the contractor or master workman, shall deny any indebtedness
sufficient to satisfy the sums claimed and all costs, the
court shall, at the instance of any party interested, cause
an issue to be made up to ascertain the true amount of such
indebtedness and shall give judgment and award costs, and
reasonable attorney’s fees, according to the rights
of the several parties in accordance herewith. In case judgment
shall be given against such owner, such judgment shall be
a lien, from the date of the original notice, and shall be
enforced as other liens provided in this chapter. The owner
shall not be liable in any event for a greater amount than
the amount contracted for with the contractor.The provisions
of this section allowing the award of attorney’s fees
shall only apply to actions the cause of which accrued on
or after July 1, 1987.
85-7-183 Assignments of Construction Funds
No contractor or master workman except as hereinafter provided,
shall have the right to assign, transfer, or otherwise dispose
of in any way, the contract or the proceeds thereof, to the
detriment or prejudice of the subcontractors, journeymen,
laborers, and materialmen as declared hereinbefore and all
such assignments, transfers, or dispositions shall be subordinate
to the said rights of the subcontractors, journeymen, laborers
and materialmen, as well as the owner. Provided, however,
that this section shall not apply to any contract or agreement
where the contractor or the master workman shall enter into
a solvent bond conditioned as provided for in the following
section.
85-7-185 Performance and Payment Bond, Actions
When any contractor or subcontractor entering into a formal
contract with any person, firm or corporation, for the construction
of any building or work or the doing of any repairs, shall
enter into a bond with such person, firm or corporation guaranteeing
the faithful performance of such contract and containing such
provisions and penalties as the parties thereto may insert
therein, such bond shall also be subject to the additional
obligations that such contractor or subcontractor, shall promptly
make payments to all persons furnishing labor or material
under said contract; and in the event such bond does not contain
any such provisions for the payment of the claims of persons
furnishing labor or material under said contract, such bond
shall nevertheless inure to the benefit of such person furnishing
labor or material under said contract, the same as if such
stipulation had been incorporated in said bond, and any such
person who has furnished labor or materials used therein;
for which payment has not been made, shall have the right
to intervene and be made a party to any action instituted
on such bond, and to have his rights adjudicated in such action
and judgment rendered thereon, subject, however, to the priority
of the rights or claim for damages or otherwise, of the obligee.
The bond herein provided for may be made by any surety company
authorized to do business in the State of Mississippi.
85-7-187 Suit by Obligee, Actions by Claimants
If no suit shall be brought by the obligee within six months
from the completion and final settlement of the contract,
then any person supplying therein labor or materials shall
have a right of action on said bond for his use and benefit
against said contractors and the sureties thereon and to prosecute
same to final judgment and execution, subject to the rights
and demands of the owner.
85-7-189 Time or Suit on Bond
When suit is instituted by any such person on a bond, it shall
not be commenced until after the complete performance of said
contract, and final settlement thereof and shall be commenced
within one (1) year after the performance and final settlement
of said contract and not later; provided that if the contractor
quits or abandons the contract before its completion suit
may be instituted by any such person including the owner on
said bond and shall be commenced within one (1) year after
such abandonment and not later. But said period for the limitation
of the institution of said action shall not begin to run until
(a) the obligee shall have made said final settlement or determined
said abandonment and published notice thereof in some newspaper
in said county, or if there be none then in some newspaper
having a general circulation therein; (b) after the written
acceptance of the project by the owner; or (c) after the actual
occupancy or use by the owner; whichever occurs first.
85-7-191 Intervention in Suit on Bond
When suit is so instituted by any person only one action shall
be brought and any person entitled to sue may upon application
intervene and be made a party to said suit; however, such
intervention must occur within the time limited for such person
to bring an original action.
85-7-193 Distribution Prorata, Attorneys Fees
If the recovery on the bond should be inadequate to pay the
full amount found due including amounts due the owner, judgment
shall be given after the obligee is fully satisfied for all
claims, demands, rights and damages to each person, including
reasonable attorney’s fees in an amount to be set by
the judge, pro rata of the amount of the recovery. The sureties
on said bond may pay into court for distribution the full
amount of their liability less any amount which may have been
paid to the obligee by reason of the execution of said bond,
and upon so doing the surety will be relieved from further
liability. The provisions of this section allowing the award
of attorney’s fees shall only apply to actions the cause
of which accrued on or after July 1, 1987.
85-7-195
Summons, Service
To all suits instituted under the provisions of this chapter
the parties interested shall be summoned as provided by section
85-7-145; provided further that where any contractors’
bond has been executed and delivered under any of the foregoing
sections of this chapter and the contractor or principal obligor
in said bond, or any one or more of said principal obligors
therein shall be a non-resident or shall remove from the state,
or so conceal himself therein that service of process cannot
be directly made upon him personally, then in such case personal
service of summons for said absent or absconding principal
obligor may be made upon the insurance commissioner of the
state of Mississippi in like manner, with the same procedure
thereabout, and with the same effect as process may be served
on said commissioner in cases of a defendant foreign insurance
company; and the delivery of any such bond within this state
shall be deemed equivalent to the appointment, by the principal
obligors and by the surety or sureties therein, of the state
insurance commissioner or his successors in office to be the
true and lawful attorney of said obligors upon whom may be
served all lawful process in any action or proceeding arising
under said bond when for any one of the reasons aforesaid
the said principal obligors or any one of them cannot be otherwise
served with personal summons in this state, and the delivery
of any bond in this chapter mentioned shall be a signification
of the agreement and power of attorney of the said principal
obligor or obligors and of said sureties that any such process
against said principal or principals which is so served shall
be of the same legal force and validity as if served upon
the said principal or principals personally.
85-7-197 Claim in Lis Pendens Record, Requirements
Any laborer, materialman or architect entitled, or who may
become entitled, to a lien under this chapter, or to give
hereunder a stop notice to any owner, shall have the right
to record his claim in the lis pendens record upon compliance
with the following requirements, to wit: (1) He shall reduce
his claim for the lien to writing which writing shall show
the basis of his claim and all of the parties thereto or to
be affected by the lien, and such writing shall contain a
description of the property sought to be bound, and it shall
also set forth the rights claimed in the property to be bound,
and the person claiming the lien shall make an affidavit to
the writing. (2) He shall notify the owner in person or by
certified mail, return receipt requested, and he shall attach
to the original of the said notice an affidavit that the said
notice has been given and the date and manner thereof. Thereupon
said notice may be delivered to the clerk of the chancery
court, who shall record the claim in the lis pendens record;
and if in due form it shall be notice both of the lien and
to the owner and all other persons interested, all of whom
shall thereupon be bound thereby. Provided, however, that
the aggregate amount of all the claims herein provided for
shall not be a lien upon or bind the property for a greater
amount than the original contract price or the amount of the
owner’s liability thereunder at the time the notice
is filed, and in event said lien shall exceed the sum of the
contract price or the balance due thereunder then they shall
be paid pro rata; and, provided further, that no notice hereunder
shall operate to extend the time during which the party entitled
may bring an action on the claim or to enforce the right with
reference to which his claim is filed, and when such rights
shall cease, the notice hereunder given shall be without effect.
85-7-199 Satisfaction of Lien
When a lien is paid or extinguished the party executing a
lis pendens notice shall enter satisfaction, or cause the
same to be entered upon the lis pendens record, and all the
provisions of law respecting the entry of satisfaction on
the records of deeds of trust and mortgages shall apply herein.
85-7-201
Filing without Just Cause, Forfeiture, Expungement
Any person who shall falsely and knowingly file the notice
mentioned in section 85-7-197 without just cause shall forfeit
to every party injured thereby the full amount for which such
claim was filed, to be recovered in an action by any party
so injured at any time within one year from such filing; and
any person whose rights may be adversely affected may apply,
upon two days’ notice, to the chancery court or to the
chancellor in vacation, or to the county court, if within
its jurisdiction, to expunge; whereupon proceedings with reference
thereto shall be forthwith had, and should it be found that
the claim was improperly filed rectification shall at once
be made thereof.
GENERAL PROVISIONS
85-7-261 Lien Rights, Assignment
Unless otherwise expressly provided, the liens created or
mentioned in this chapter shall exist by virtue of the relation
of the parties, and without any writing, or if in writing,
without recording; and the rights and liens conferred may
be asserted and enforced by the assigns and personal representatives
of the lienor.
85-7-263 Payment of Liens in Proportion
All liens for erecting, constructing, altering, or repairing
the same building, house, structure, fixture, boat, water
craft, railroad, or railroad embankment shall be concurrent,
and shall be paid in proportion out of the proceeds of the
property when sold; and in case the sheriff shall have doubts
as to the proper application of the money, he may return the
same to the court, stating the question, for its determination.
85-7-265 Justice Court Proceedings
Justice courts shall have jurisdiction of cases arising under
this chapter where the amount does not exceed the jurisdictional
amount provided for in Section 9-11-9, Mississippi Code of
1972, and the proceedings shall be as nearly in accordance
with the provisions of this chapter as may be practicable,
and the parties shall have the right of appeal as in other
cases. But the sale of buildings under their judgments may
be advertised and made as sales of personal property levied
on under execution issued by the justice court. |
