
    *Hendricks, by Stuart v. Fields.
    June Term, 1875,
    Wytheville.
    Absent, Staples, J.
    
    Mechanics’ Liens—Conveyance of Property Subject to. —In March 1866 F entered into a written contract with H to erect for H on land in the country, certain building's. The buildings were completed, and on a settlement H owed him $1,321.17, for which he gave to F his two notes dated the tth of July 1867, one payable one day after date, and the other by the 1st of November 1867. On the 10th of January 1868 F had the contract recorded in the clerk’s office of the county. In May 1868 F filed his bill against H, claiming a mechanics’ lien on the land and buildings under his contract; and on the 8th of October the bill was taken for confessed, and a decree made that H should pay the amount due F; and if this was not done by the 15th of November, then the land and buildings should be sold &c. No sale was made under this decree, and before it was rendered, viz: on the 1st of October 1868, H conveyed the land to S, with general warranty, and other covenants of title. And S thereupon, in the name.of H, moved the court to set aside the decree, as being erroneous. This motion was heard and overruled on the 31st of May 1873. And from this decree, and also the decree of the 8th of October 1868, S, in the name of H, obtained an appeal to this court. The cause came on here upon a motion by the appellee to dismiss the appeal, and also on the merits. Held:
    1. Same—Same—Appeal—Right of Assignee to Sue in Name of Assignor.—S is entitled to prosecute an appeal in the name of H, for the benefit of S, for the purpose of having the decree of the 8th of October reversed, and the said land discharged of the claim to said lien.
    2. Decrees—Interlocutory—Statute of Limitations.— The decree of the 8th of October 1868 is not a final decree, and therefore, though it was rendered more than two years before the petition for the appeal was presented, yet the said petition *was not barred by the limitation prescribed by the Code, ch. 178, § 3, p. 1136.
    3. Mechanics’ Lien—Under Code of i8do—Construction.— On the 1st of March 1866, when the contract between H and F was entered into, the only mechanics’ lien was that provided for in the Code of 1860. p. 567, ch. 119. § :i. which provided for such lien only where the land on which the building's were erected or repaired, was situate in a city or town; and that not being the fact in this case, C was not entitled to a mechanics’ lien nnder that law for the money dne him for erecting the buildings.
    4. Same — Same — Application—Retrospection.— Though said § 2, of ch. 119. was amended by the act of the 13th of April 1867, Sess. Acts 1866-'67, p. 803, ch. 36, and by that amendment gave a lien on land whether situate in a city or town or in the country, yet that act operates prospectively only, and not retrospectively also; and therefore does not give a mechanics' lien to tr for the money dne him on the contract.
    5. Novation of Contract by Recordation.—Even if the said contract was duly admitted to record, the effect of said act was not to produce a novation of the contract, or to bring it down to the date of the recordation, so as to subject the said contract to the operation of the said act of April 13, 1867, and to give to F, under and by virtue of the same, the benefit of a mechanics’ lien thereunder.
    In May 1868 James Fields brought a suit in the Circuit court of Russell county against A. H. Hendricks, to enforce a mechanics’ lien. In the bill filed in the suit, the complainant represented that on the 1st of March 1866 he and the defendant entered into a written contract, by which said Fields agreed to build certain brick houses for said Hendricks, upon the land of the latter in the county of Russell, on certain terms set out in said contract, which is marked A and exhibited with the bill; that the said contract was duly admitted to record - in the clerk’s office of Russell County court, on the 10th day of January 1868, as will appear by the official certificate of the clerk endorsed on the contract; that said Fields completed the work *according to the contract, and upon a settlement between the parties there was found to be due for said work a balance of $1321.17, for which said Hendricks executed his two notes to said Fields, one for $672.75, dated on the 1st day of July 1867, and due one day after date, and the other for $648.42, dated on the 4th day of July 1867, due by the 1st of November 1867; that the notes were still unpaid and due to the plaintiff, subject to the various credits endorsed on one of them; that six months had elapsed since the last instalment of the money to be paid under the contract became payable; and that he, the plaintiff, was advised that he had a lien upon the land on which said buildings were erected for the amounts still due him upon the notes aforesaid. (See acts 1866 and 1867, pages 805 to 806.) He therefore prayed that Hendricks might be made defendant to the bill, and be decreed to pay the money due as aforesaid, with interest and costs; that to secure such payment the specific lien aforesaid might be enforced, and for general relief.
    On the contract marked A, and exhibited with the bill, is an endorsement in these words:
    “This agreement between A. H. Hendricks and James Fields, bearing date the 1st day of March 1866, was delivered to me in the clerk’s office of Russell County court, on the 10th day of January 1868, and admitted to record. Teste, J. C. Gent, D. C. ”
    There is no other certificate endorsed on, or annexed to the agreement, and nothing to show it was acknowledged before the clerk or his deputy unless that fact can be properly inferred from the certificate endorsed thereon as aforesaid.
    On the 8th of October 1868 the bill was taken for confessed, and the court being of opinion that the plaintiff was entitled to the lien which he claimed, '^decreed that he recover of the defendant the sum of $1321.17, with interest as aforesaid, and subject to the credits aforesaid; and that unless payment thereof was made by the 15th day of November 1868, then the land and buildings in the bill mentioned, or so much thereof as might be necessary, should be sold on the terms and in the manner mentioned in the decree, by a commissioner therein named, who was directed to report his proceedings to the court.
    No sale was ever made under the said decree, and before it was rendered, to wit: on the 1st day of October 1868, the said Hendricks and wife, by deed executed by himself and wife, and bearing date and duly recorded on that day in the clerk’s office of the County court of Russell, conveyed to WiHiam A. Stuart, in fee simple and with general warranty and other covenants of title, a tract of land in said county, including the land on which the said Fields claimed a mechanics’ lien as aforesaid. And the said Stuart contending that there was error in the proceedings in the suit of Fields v. Hendricks, in which it had been decreed that the former had a mechanics’ lien on the land of the latter as aforesaid, and that he was entitled as assignee of said Hendricks, and in the name of said Hendricks, to have said decree set aside and reversed, he, the said Stuart, accordingly, in the name of said Hendricks, moved the Circuit court of Russell, in pursuance of a written notice to that effect, to set aside and annul the said decree, as being erroneous and contrary to law and equity; assigning as error that there was no law giving such lien, and because the contract, on which said lien was claimed, had never been duly acknowledged and admitted to record. After sundry proceedings were had on the motion, it was finally heard on the 31st day of May 1873, when it was overruled with costs by the court.
    *From the said decree overruling the said motion, as well as from the said decree of the 8th day of October 1868, the said Hendricks, or the said Stuart in the name of the said Hendricks, applied to a judge of this coart for an appeal, which was accordingly allowed.
    While the appeal was pending, the appellee submitted a motion to dismiss it on two grounds: 1st, that the appellant had given an order for that purpose, which was duly authenticated and filed with the record; and that the said Stuart had no right to prosecute the said appeal in the name of the said Hendricks; and, 2dly-, that more than two years having elapsed after the said decree of the 8th day of October 1868 was rendered, and before the petition for an appeal therefrom was presented, the said appeal was barred by the act of limitations. Evidence was taken and filed by both parties; that is, the said Fields and the said Stuart, in regard to the first of these two grounds, and the cause came - on to be heard by the Court of Appeals, both upon the motion to dismiss the appeal and upon the appeal itself at the same time.
    Terry & Pierce, for the appellant.
    Cummings and J. A. Campbell, for the appellee.
    
      
      Judge Staples had been counsel in the cause.
    
   Moncure, P.

delivered the opinion of the court.

The court is of opinion, that the appellant A. E- Hendricks having by deed executed by himself and wife, bearing date and duly recorded in the clerk’s office of the County court of Russell on the first day of October 1868, conveyed to William A. Stuart, in fee simple and with general warranty and other covenants of title, a tract of land in said county, including *the land on which the appellee James Fields claims in this case a mechanics’ lien, the said Stuart is entitled, as assignee of the said Hendricks, to prosecute in his name and for the benefit of the said Stuart this appeal, for the purpose of having the decree of the Circuit court in this case reversed and the said land relieved and discharged of the claim to the said lien. And the court doth therefore overrule the motion of the appellee to dismiss this appeal upon the ground that the said Stuart has no right to prosecute the same in the name of the said Hendricks.

The court is further of opinion, that the decree appealed from in this case is not a final decree; and therefore, though it was rendered more than two years before the petition for the said appeal was presented, yet the said petition was not barred by the limitation prescribed by the Code, chapter 178, section 3, page 1136. The court doth therefore overrule the motion to dismiss the said appeal upon the ground that the said petition was barred by the said limitation.

The court is further of opinion, that as on the 1st day of March 1866, when the contract between said Hendricks and Fields was entered into for the erection of certain buildings by the said Fields for the said Hendricks, as mentioned and set forth in the agreement marked A and filed with the bill, and as for a long time thereafter, and until the work contracted for as aforesaid had been fully executed, the only law of this state which provided for a. mechanics’ lien was that laid down in the Code of 1860, page 567, chapter 119, section 2, which provided for such lien only where the land on which the buildings were to be erected or repaired was situated in a city or town; and as the land on which the buildings were contracted to be erected in the agreement aforesaid was situate not in *a city or town but in the country; therefore the said Fields was not entitled to a mechanic’s lien under the said law for the money due to him for erecting the said buildings.

The court is further of opinion, that although by an act passed afterwards, to-wit: on the 13th day of April 1867, Acts of Assembly 1866-’67, page 805, chap. 36, the said second section of the Code of 1860 was amended by omitting the words “in a city or town,’’ in the first line of the said section, the effect of which amendment was to give a lien on the land whether it be situate in a city or town or in the country; yet that act operates prospectively only, and not retrospectively also, and therefore does not give a mechanics’ lien to the said Fields for the money due to him as aforesaid.

The court is further of opinion, that even if it be conceded, for the purposes of this case, that the said agreement was duly admitted to record, the effect of that act was not to produce a novation of the contract or to bring it down to the date of such recordation, so as to subject the said agreement to the operation of the said act of assembly, and to give to the said Fields, under and by virtue of the same, the benefit of a mechanics’ lien as aforesaid.

The court therefore, without deciding whether the said agreement was duly admitted to record or not (a question not necessary tobe decided in this case), is of opinion that the appellee is not entitled to the lien which he claims, and that the decree of the Circuit court is therefore erroneous, and ought to-be reversed, and the bill dismissed.

The decree was as follows:

This day came again as well the said appellant as *the said appellee by their counsel, and the court having maturely considered the said motion together with the depositions, affidavits and exhibits, and the arguments of counsel touching the same, doth, for reasons stated in writing and filed with the record, overrule the said motion to dismiss the appeal; and having further maturely considered the transcript of the said decree and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said decree is erroneous; therefore it is decreed and ordered that the same be reversed and annulled, and that the appellee pay to William A. Stuart (for whom and at whose expense the appeal is prosecuted) the costs of the appellant in the prosecution of the same. And this court proceeding to render such decree as the said Circuit court ought to have rendered, it is further decreed and ordered that the appellee’s bill be dismissed, and that the appellee pay to the appellant his costs by him expended in the said Circuit court.

Motion to dismiss the appeal overruled.

Decree reversed. 
      This case has never been cited or in any way referred to in subseauent cases in either Virginia or West Virginia, apparently, because of the fact that its decision was based solely upon statutory enactments which were soon after amended or abolished.
     