§ 29. Subordination of liens to subsequent mortgage. In case an owner
of real property upon which an improvement is being or has been made,
desires to obtain a loan by executing and delivering a bond or bonds or
note or notes secured by a mortgage upon such real property, or any part
thereof, and in case lienors having mechanics' liens against such real
property, or any part thereof, notices of which have been filed prior to
the recording of such mortgage, and which said liens have not been
discharged as in this article provided, shall, to the extent of at least
fifty-five per centum of the aggregate amount for which notices of such
liens have been so filed, by an instrument or instruments in writing,
duly acknowledged, designate and authorize one or more persons to
consent to the execution and delivery of such bond and mortgage or note
and mortgage, and in case the consent in writing, duly acknowledged, of
such person or persons to the execution and delivery of such bond and
bonds and mortgage or note and notes and mortgage shall be filed in the
office of the clerk of the county where such real property is situated,
together with such instrument or instruments of designation, then all
mechanics' liens for labor performed and materials furnished prior to
the recording of such mortgage whether notices thereof have been
theretofore or are thereafter filed, shall be subordinate to the lien of
such bond or bonds and mortgage or note or notes and mortgage to the
extent of the full amount which shall be advanced thereunder provided
such mortgage contains the covenant prescribed in subdivision three of
section thirteen of this chapter. In case such person or persons so
designated and authorized shall so consent to the execution and delivery
of such bond and mortgage or note and mortgage but on condition that a
sum of money be deposited with the clerk of such county, and such sum is
so deposited, the county clerk, upon such payment, shall forthwith enter
upon the lien docket, indexed with the name of the owner, the facts
relating to such payment. A deposit of money made as prescribed in this
section shall be repaid to such owner or his assignee upon the discharge
or release of all mechanics' liens, judgments and attachments against
the property. All deposits of money made as provided in this section
shall be considered as paid into court and shall be subject to the
provisions of law relative to the payment of money into court and the
surrender of such money by order of the court. The court shall in any
action brought to foreclose any of such liens, or in any action brought
to recover such deposit or any part thereof, direct the payment of such
sum so deposited to the persons whose mechanics' liens, judgments, or
claims secured by attachment shall have been established on the trial
and the amount so paid shall be credited upon such mechanics' liens,
judgments and claims. Upon such filing of such consent, as hereinbefore
provided, the lien of all judgments and attachments affecting such real
property and all claims and liens acquired in any proceedings upon such
judgments shall be subordinate in like manner and to like extent as
hereinbefore in this section provided for the subordination of
mechanics' liens, and any attachment issued or judgment recovered upon a
claim, which, in whole or in part, is not for materials furnished, labor
performed or moneys advanced for the improvement of such property shall
be subordinate to all mechanics' liens thereon, and shall also be
subordinate to all judgments recovered upon and attachments issued upon
claims for materials furnished, labor performed or moneys advanced for
the improvement of such real property. Any lienor having a mechanic's
lien against real property may subordinate such lien to any subsequent
mortgage thereon by a certificate duly acknowledged or proved stating
that such lien is subordinated, which certificate shall be filed in the
office where the notice of lien is filed. Upon filing such certificate,
the county clerk in the office where the same is filed shall note the
fact of such filing in the "lien docket" in the column headed
"proceedings had," opposite the docket of such lien.