
    VITO VITI vs. DAVID W. DIXON.
    Where a mechanic renders services, or furnishes materials for a building under a contradi, the iien attaches under the act of 1835, when the services commence or upon the delivery of the first articles ; and the iien is perfected by filing an account within six months after the completion of the contract.
    
      ERROR TO -ST. LOUIS COURT OF COMMON 'FLEAS.
    Statement of the case.
    This was an action of ejectment brought by Vito Vit'i against D. W. Dixon, 'foV a house and lot of land in the city of St. Louis.
    On the trial of the cause it was admitted that at'the timo of the commencement of'the suit', cribed in tho plaintiff’s declaration, with knowledge of plaintiff’s claim of title thereto—holding ’such possession, and claiming under Louis Montany, and tho lien hereinafter mentioned. That -on tho I8th day of Oct. ÍJÓ41, and until January 1843, Montany had the possession of the premises, and while in possession erected thereon a tivo story brick house, as the tenant of the day of July 1848, arid was for the term of ten years from date. The plaintiff next gave in evidente a deed of íru'át from 'said Montany, dated the 12th day of May 1§42, duly acknowledged and recorded, convoying all the estafe and interest vested in him by said lease, together with said house erected as aforesaid, to Wm. Smith and assigns, for the purpose of securing the payment of certain indebtedness therein named, and authorizing said Smith to sell said property and estate in 'the mode proscribed in the cteed of trust", on the failure by Montany to pay said indebtedness at the time it fell due. Afterwards, upon failure of Montany to pay said indebtedness, arid on the 21st day of February, 1846, the said trustee duly sold and convoyed, according to the provisions of said deed of trust, all the property and premises therein described, to the plaintiffj and execu'office of tho county of St. Louis-, oil the 8th Juno 1846. and over sincu, tho 8th of June 1846, the defendant had been in possession of the premises desplaintiff, and in the course of such erection, tho materials, and work, and labor mentioned in the 'account, contained in tho record of tho lien under which Dixon claimed, wore furnished and done in and upontód house, by Asa Wilgus, under a contract therefor with Montany, at the dates attached respectively, to the several items of said account. The lease from Vito Viti under which Montany had possession 'of the premises, was duly executed and recorded, and bears date the 29th ted to him a proper deed of conveyance iñ due form, which was also recorded in said recorder’s
    On the 13th day of Dec. 1842, Asa Wilgus filed his lien under the mechanics’ lien law on the house erected by said Montany, on the promises aforesaid, and the following is a copy of the account filed by him for the purpose of perfecting his said lien.
    'Louis Montany, to Asa Wilgus, Dr.
    1841. Oct. 18th, To-J box glass 8 x 30, at $4 50.....................'•......• •• 1841. 2 59
    “ “ 10x12“ 650................................... 2 75
    ‘‘20 “ 9 lbs. putty at 12J cts.............'•................ 1 12i
    “ “ “ Tin points..................... '• 06£
    “ 28 “ 1 quart of oil.................................... 37i
    Í842. July 2 '“ Paints, painting, glass and glazing, new house out and Inside '• • '•.....'•................'•..................I ■230 00
    
    $236 56
    Louis circuit court, at the November term 1842, against Montany, on the aforesaid account, and 'obtained judgment for the amount against him by confession. After filing his lien as aforesaid, ÁVilgus instituted his action of common assumpsit, in the St;
    Pie then prayed an order of court awarding á special fifaagáinst tho property charged with the Ren of the foregoing demand, as follows:
    January 26, Í843;
    . vs. Louis Montana.
    
      On application of the said plaintiff by his attorney, and it appearing to the satisfaction of the court that the account on which the judgment in this cause was rendered, has been filed in the office óf the clerk of th% St. Louis circuit court, as a lien upon 'the following property, to wit: (property described as in the record) and that the account aforesaid is for work and labor and mate- ' rials furnished in and about the erection of tho above described building, therefore, it is ordered by the court that the property above described be sold accordingto the form of the statute in such case made and provided, to pay and satisfy tho aforesaid judgment, interest and costs. A'fi fa was issued accordingly.
    On said íi fá the premises in dispute were sold, and the sheriff conveyed to said Wilgus, who was the purchaser, all the right, title and interest of Montany in and to the same, by deed duly executed, which was recorded. And afterwards Wilgus conveyed the interest thus acquired by him to tho defendant Dixon, by deed in due form and recorded.
    On this state óf facts the court below, sitting as a jury, declared the law to be as follows: That under the lien law of 1835, the mechanic’s lien was in existence from the time of the rendition of services, or the delivering of materials under any contract contemplated by said law, and that such lien was perfected by filing a sworn account of tho items within six months after the completion of such contract, and it appearing by the record of the case of Wilgus vs. Montany, that these items of Wilgus’ account prior to tho recording of the deed of trust under which plaintiff claims title, the court are of opinion that the'title under said lien is better than that derived from the deed of (rust.
    Polk, for plaintiff in error.
    ForTevcrsal of judgment in this ease, tho counsel of plaintiff in error relies upon the following points:
    1st. The mechanics’ lien filed by Wilgus incepts at the date of its filing (thé Í3th Dee. 1842) and not before. Code of 1835 p. 108 secs. 2, 3,4, 5, 6, 7, 8.
    2d. But if the mechanics’ lien did not incept at the date of the filing the account, it must have commenced either first, when the first item of the account first accrued, or secondly, when the last item of tho account accrued, or thirdly, it attached for and to tho extent of each item as and when that item accrued.
    If the mechanics’ lien dates its inception when the first item of the account accrued, the demand —the entire demand as a whole must also have accrued at the same time. Otherwise the lien would attach before the demand had accrued, which is obviously and plainly impossible.
    But if tho demand accrued when the first item of the account was furnished by the mechanic, then rhore than six months had elapsed, after the demand had accrued before the account of such demand was filed in the office of the clerk of tho circuit court.
    But by the express terms of the statute (see. 2 p. 108) no mechanic can avail himself of the benefit of the act giving liens to mechanics, and material men, uhies he files the account of his demand within six months after his demand shall have accrued.
    3d. If the lien attached when the last item of the account accrued, then, as that item accrued not Until 'the 2d July 1842, after the deed of trust, under which plaintiff claimed was filed for record, the title to the property in question had passed out of Montany before the lien attached to it.
    4th, If the lien attached for each item as it accrued, theft as the account was not filed according to the statute, within six months after the five first items thereof had accrued, the mechanic could have no lien for those items. But in the account filed he embraced the three first items for which he could not have a lien, as well as tho last item for which he might have had a lien, and seeking to avail himself of a lien for the first items, as well as for tile last,- he thereby lost his lien for the whole of the items—the last as well as tho first.
    
      But if the mechanic could have no lion for the first five items of account, and if his lien attached for the last item when it accrued, then as before that date, the deed of trust under which plaintiff claimed had been recorded, of course the mechanic’s lien is postponed to the claimant under the deed of trust.
    Todd & Krum, for defendant in error.
    The defendant in error insista that the contract for the work and materials between Montany and Wilgtis is to be regarded as an entirety, and by relation tile last item of the account relates to the first item.
    2d. That Vito Viti claiming under Montany, is in no better positiou than Montany would be, and that Montany, if he was suing hero, could not recover against the title secured under the lion.
   Judge Birch

delivered the opinion of the court.

This was an action of ejectment brought by Yiti against Dixon for a house and lot of land in the city of St. Louis.

From the statement agreed upon by their respective attorneys, it appears to have been admitted on the trial below “ that at the time of the commencement of the suit, and ever since the 8th of June, 1846, the defendant had been in possession of the premises described in the plaintiff’s declaration, with knowledge of the plaintiff’s claim of title thereto—holding such possession and claiming under Louis Montany, and the lien hereinafter mentioned. That on the 18th Oct., 1841, and until January, 1848, Montany had the possession of the premises, and while in possession thereof, erected thereon a two story brick house, as the tenant of the plaintiff, and in the course of such erection, the materials and work and labor mentioned in the account contained in the record of the lien under which Dixon claimed, were furnished and done in and upon said house, by Asa Wilgus, under a contract therefor with Montany, at the dates attached, respectively, to the several iterms of said account.

The lease from Viti, under which Montany had possession of the premises, was duly executed and recorded, bears date the 29th of July, 1840, and was for the term of ten years from date. The plaintiff next gave in evidence, a deed of trust from said Montany, dated the 12th day of May, 1842, duly acknowledged and recorded, conveying all the estate and interest vested in him by said lease, together with said house, erected as aforesaid, to William Smith, and assigns, for the purpose of securing the payment of certain indebtedness therein named, and authorizing said Smith, as trustee, to soli said property and estate in the mode prescribed in the deed of trust, on the failure by Montany to pay said indebtedness at the time it fell due. Afterwards, upon Montany’s failure as aforesaid, the said trustee, on the 21st day of February, 1846, duly sold and conveyed, according to the provisions of the said deed of trust, all the property and premises therein described to the plaintiff, and executed to him a proper deed of conveyance, in due form, which was also recorded in said recorder’s office of the county of St. Louis, on the 8th day of June, 1846.

On the 13th December, 1842, Asa Wilgus filed his lien, under the mechanics’ lien law on the house erected by said Montany on the premises aforesaid. The following being a copy of the account filed by him for the purpose of perfecting his said lien.

Lewis Montany, To Asa Wilgus, Dr.

1841. Oct. 18, to 1-2 box glass, 8 x 10, at $4 50............ 2 25

“ “ “ 10x12“ 5 50............ 2 75

“ 20 9 lbs. putty at 12£ cts....................... 1 12|

“ “ Tin points................................ 06‡

“ 28 1 quart of oil............................ 37&

1842. July 2 Paints, painting, glass, and glazing new house inside and out........................... .230 00

$236 56*

After filing his lien as aforesaid, said Wilgus instituted his action of common assumpsit in the St. Louis circuit court, at the November term 1842, against Montany, and obtained judgment against him, by confession for the amount of the foregoing account, and under the special fieri facias awarded and issued against the property charged with the lien, the premises in dispute were sold, and the sheriff conveyed to said Wilgus, who was the purchaser, all the right, title and interest of said Montany. This deed to Wilgus was duly executed and recorded, and he subsequently conveyed the interest thus acquired to Dixon, by deed in due form, and recorded.

Upon this state of facts, the court below, setting as a jury, declared the law to be as follows :

“ That under the lien law of 1835, the mechanic’s- lien was in existence from the time of the rendition of services or the delivery of materials under any contract contemplated by said law, and that such lien was perfected by filing a sworn account of the items within six months after the completion of such contract, and it appearing by the record in the case of Wilgus against Montany, that these items of Wilgus’ account bear date prior to the recording of the deed of trust under which plaintiff claims title, the court are of opinion, that the title under saié lien is better than that derived from the deed of trust. ”

As from all that appears in this case, there was but a single, contract, covering all “the materials and work and labor mentioned in the account,” to affirm the judgment of the court will be but in accordance-with the spirit of one of the previous decisions of this court. 9. Mo. 558, and with the analagous reasonings and conclusions just delivered in the case of Beehler vs. the steamer Mary Blane. We regard the object of both laws as being essentially the same—to wit, to secure to laborers and furnishers a priority of lien coincident and co-extensive with their contracts. In this case, Montany himself could not have-divested Wilgus of the right he acquired, by his contract, to complete the job he had undertaken ; and having,completed it, for all that appears to the contrary and according, to his engagement, his lien for all he performed under, it, should he held paramount to any subsequent incumbrance. The judgment of the court of common pleas is therefore affirmed*  