Page:Federal Reporter, 1st Series, Volume 10.djvu/33

 STATE V. TIEDEBMANN. 21 �on this bond, could question the validity of those Jndgments ; or it may haye been of opinion that this was money advanced for the use and benefit of the contractor, the principal, by the school board, and that he ought to be held to refund it. However that may be, the surety was not in court at that time, he was not a party to this pro- ceeding by which the mechanics* liens were established, he was not the contractor, he had not made this indebtedness, and he can only be held upon the ground that it was an indebtedness created in vio- lation of his obligation of suretyship. This can be only held on the ground that it was a valid mechanics' lien established upon the prop- erty, because the contractor failed to keep his contract and pay for the material that he used in the construction, of the building. The law of Missouri, as established by repeated decisions, is that there can be no sueh thing as a mechanics' lien upon a public school build- ing. That is the construction of the statuts of this state repeatedly adopted by the supreme court of the state, and it is binding upon thia court, and it is, in our judgment, perfectly sound, independent of any adjudication. The surety here bas a right to raise this question no w, for it bas never been raised where he was a party ; he has a right to say and insist that the school board was not bound, as against him, to pay these claims for mechanics' liens, and that if they did so, so far as he is concerned, it was a voluntary payment of a claim for which be was not liable. Of course, it will not be insisted that the surety upon the bond is liable for an overpayment to the principal. The surety can only be held upon the ground, as I have already said, that this was a valid mechanics' lien upon the school building, which the board was bound to pay for the purpose of protecting their prop- erty. As the present defendant has a right now, for the first time, to raise the question whether this was a valid mechanics' lien and an encumbrance upon the school building, and as he has raised it, we feel bound to hold that it was not ; that the payment, so far as the surety is concerned, was a voluntary payment. The objection to this evidence must, therefore, be sustained. �Upon reflection I am very clearly of the opinion that this defend- ant, ae surety on the bond, has a right to a settlement of his liability upon his bond under the contract, and is entitled to whatever right he would have had if he had been present at a settlement under the contract at the time that the building was delivered over, or at any other time. The rights that his principal had against this plaintiii under the contract he has a right to avail himself of as a defence in this case, the same as if he had been present and had insisted upon ��� �