
    Greenwood et als. vs. Tennessee Manufacturing Co. & Agricultural School.
    Mechanics Lien. Non-resident mechanics. The statutes which give to mechanics and undertakers a lien upon the building, &c., for the value of their labor or materials furnished for its erection apply as well to persons who are nonresident as to those who reside within the State.
    Same. Description of persons and materials not embraced within the statutes. The statutes which provide a lien for mechanics, &c. do not apply to the merchant who furnishes machinery to be used in a building erected for manufacturing purposes.
    This case was heard at the October Term, 1852, of the chancery court at Clarksville, Chancellor Brien, presiding. A decree was rendered, from which the parties appealed as stated in the opinion.
    Bailey, Robb and Humphreys, for the parties except Greenwood,
    argued: That Greenwood is not a mechcmie, that he was a mere merchant, who sold materials that were used in the erection of the mill, and that the man who furnished the nails, locks and hinges, 'used about the mill, was as much entitled to the mechanics lien as was Greenwood.
    The object of the legislature in passing the statute, was, to confer a favor on the laboring men of the country, by making sure to them the pay for their labor and material furnished, and was not intended to benefit the mere trader who might buy and sell for the purposes of gain.
    But we contend further that, eren if Greenwood was a mechanic, 'that he is a citizen of another State; sold and delivered the articles in another State, and as such is, not entitled to the benefit of the provisions of our statutes conferring the mechanics lien. Those statutes were enacted for the benefit of our own citizens; to encourage and protect home industry; and not to confer •a privilege on a foreign manufacturer who is or may be an alien; a stranger to our laws and institutions, and having no feeling or sympathy in common with us. If a citizen of the State of Ohio who has sold material used in the construction of a house is entitled to a lien on the property for the payment: of the price of the material sold; so is a citizen of Liverpool for the iron or wares by him furnished, and the citizen of Japan or China for the wares or drapery by him.sold and used in the construction or ornamenting of the house.
    The statutes conferring the specific lien, known as the “mechanics’ lien,” are analagohs to the statutes, known as the “poor laws,” exempting certain articles of property from execution. And this court has holden that these statutes are intended only for our own citizens; and therefore refused the benefits of these statutes to a citizen of another State. See 11 Humph., 44.
    Hehry, Kimble and Shaceleeoed, for Greenwood,
    argued: The question here is whether a non-resident who furnished the mill machinery is entitled to a lien with other mechanics who built and' furnished materials for the mill. It cannot be doubted but that Greenwood
    
      
      & Co. sold the machinery expressly for this mill and not for purposes of speculation by the purchasers, or as an article of merchandize. The acts of the legislature of 1825, ch. 37, and- 1829, ch. 26, use the general language, “ when any mechanic or mechanics, shall build or construct, or furnish the materials, shall have a lien,” &c. The first of these acts limits the lien to the building houses in the towns in the State, under special contract. The second of these acts extends the lien in favor of all who work or furnish materials in proportion to the amount of work done and materials furnished. By the act of 1835, the lien is extended to any mechanic who may build or furnish materials for any building in any county in the State.
    The act commencing thus, “The lien given to mechanics who may construct, furnish materials,” &c. We suppose it will not be controverted, that the machinery is to be considered material in the construction of the mill, or a part of its structure, as much so as building the foundation walls or erecting the superstructure, for without it there could be no mill. The machinery are fixtures, so considered in the case of Mor gam, vs. Arthurs, 3 Watts, 140. The case says -a steam saw mill engine is subject to the mechanics’ lien. And in Gravy vs. Hard-slwp, 17 Ser. & Raw., 413, the court says a boiler in a brew house is a fixture, and subject to the mechanics’ lien under the Pennsylvania law.
    The language of our acts of assembly granting the lien is general; “when any mechanic;” embracing all. There surely is nothing in the phraseology of the law to exclude a non-resident who furnishes any portion of the material of the mill. Then what principle of policy would dictate his exclusion ? The States and the citizens of the States stand in a very different relation, to that of Japan and the other nations of the earth. The people of the States in forming their federal compact, looking to the importance of the relations of comity and unrestricted commerce between them provided a suitable guaranty. And in accordance with this constitutional provision, as well as the suggestions of mutual and reciprocal benefits, and the pleasures and advantages of social intercourse, it has long been the usage of the citizens of the States to deal and traffic, sell and barter, and purchase their respective merchandize, commodities, and manufactures.
    It cannot be conceived that the legislature could have designed by any enactment, to have disturbed this state of amity and lucrative system of intercourse, by denying to a citizen of another State that remedial justice in her courts, Tennessee extends to her own citizens.
    If the manufactures, the result of the skill and science of the citizens of other States, are important to us, and our citizens should choose, or feel themselves under a necessity, for the lack of similar skill, &c. in their own State, to purchase them, common, morality would, it should seem, incline the legislature to provide suitable methods by which the foreign citizen should be paid in the manner directed for her own citizens. Especially as no detriment can grow out of it to the State or her citizens; but, on the contrary, many benefits.
   Caruthebs, J.,

delivered the opinion of the court.

The defendants erected extensive mills &c., at Port Royal, in Montgomery county, and failed. Several bills were filed by the complainants, and attachments issued to assert their lien as mechanics against the property. The Bank of Tennessee is also a party insisting upon its priority of right, as vendor by bond for title, for the unpaid purchase money, of about four thousand dollars. This right is conceded, and the contest is between the other parties. The various cases were consolidated. The sale of the property was made, and after discharging the debt of the bank, there still remains of the proceeds for distribution among the complainants, about three thousand dollars. The debts of complainants, which ai*e declared by the decree below to be a lien upon the property, and to be paid pro rata, amount to five thousand three hundred and forty-three dollars. This sum is made up as follows: Greenwood’s debt four thousand one hundred and three dollars; Wilder three hundred and sixty-five dollars; Durrell four hundred and seventy-five dollars; Stewart one hundred and nine dollars; Izor two hundred and ninety dollars. In addition to these complainants, McOauly & Johnson’s decree amounts to six hundred and eighty-three dollars. As this claim was not for work done or materials furnished for the buildings, it was excluded until the others were satisfied. All the parties appeal on both sides, except Greenwood and the Bank of Tennessee.

The only question now made is, as to the correctness of allowing Greenwood to participate in this fund equally with the mechanics. It is contended that non-residents who furnish materials out of the State, are not embraced in our act of Assembly, but that it was only intended for our own mechanics, and for materials made in the State. We cannot concur in this construction. It would be against that comity and liberality that does, and should ever exist between us and our sister States. The provisions of tbe act is general, and we will not by construction, make tbe inivdious distinction. We must then regard this claim witb tbe same favor as if it belonged to one of our own citizens, and test tbe right of Greenwood by tbe same rules that we would do if be were a resident of Clarksville or Nashville, and bad made tbe same contract.

Tbe act of 1846, ch. 118, § 1, gives a lien to any mechanic or undertaker who may “furnish materials, or any part of tbe materials, in tbe construction, building or repairing of any bouse, fixtures or improvements, or shall do any work upon tbe said bouse, either by finishing off tbe same, painting, ornamenting or otherwise. Such meoha/mo or imckrtalcer shall have a lien,” &c. Mr. Greenwood was an iron merchant, and contracted witb tbe agent of defendant to furnish tbe iron and castings necessary for tbe factory, to be paid in part upon delivery in Cincinnati, and tbe balance in a bill on time. We do not believe that it was tbe intention of tbe Legislature to provide a lien, and thus give a preference over other creditors to him who sells to a company or an individual, machinery to put into a bouse built for manufacturing, any more than to a cabinet maker for tbe furniture to go into a new building, or to a merchant who may have sold nails, screws and locks, to an undertaker, or to tbe owner. But to whom is this lien given? To tbe mechanic or undertaker, by express words, both for work done by himself, or others under him, and for tbe materials such mechanic who contracts to erect tbe building, or any other person who may undertake it, shall furnish. This section does not apply to tbe person from whom tbe undertaker may get tbe materials; it does not give him any lien. He gives credit to the undertaker, and must look to him for his pay. If this were not so, there would be no use for the second section, which expressly extends the lien to others than those provided for in the first section.

“ Seo. 2. That the provisions of this act, and the benefit of the lien hereby created, shall be extended to the journeymen workmen of said mechanic or undertaker, or such other persons as may be employed by or under him, to do any part of said work, or furnish any of the said materials, who shall be authorized to enforce the same in preference to said undertaker; Provided, notice in writing of said lien, shall be first given to the owner,” &c.

By the first section, the lien was given to the “ mechanic or undertaker,” who might, “by special contract with the owner,” construct, build or repair, or furnish the whole or any part of the materials for any house, &c. But as the undertaker might not be responsible, the second section extended the lien to any person that might be employed by or under him, to do any part of the work, or furnish any of said materials. Then if materials are furnished by contract with the undertaker, the lien is given to such person, in preference to said undertaker. But this lien depends upon giving notice to the owner. The object of which is, that he may may withhold from the undertaker, with whom he has contracted, the amount of such claim. The second proviso demonstrates the correctness of this construction. And provided further, “That the claims herein secured by lien, for work and labor done, or material furnished, shall in no case exceed the amount agreed to be paid by the owner or proprietor, in his original contract with the undertaker.” If this were not so, and it was intended to give a lien to all who might furnish materials or machinery for a building, why would it be limited to the amount agreed to be paid to the mechanic, or other person who undertakes the building? What would be the necessity for any reference to that contract? The whole object of the act might be defeated by the opposite construction. A mechanic agrees to build a house for a factory, for a certain amount, and lays out large sums for materials and workmen, and looks to the lien given him by law for his security; but, at the same time, the owner, by whom he is employed, makes a contract for fifty thousand dollars worth of machinery, and breaks; when the machinist comes forward with his large claim, and overwhelms him. This could not have been the intention of the' legislature. It thought “the laborer was worthy of his hire,” and intended to secure it to him. Mr. Greenwood’s contract was with the owners, and had no connection with the undertakers. His case is not provided for in this act; but the claims of the other complainants are, as they worked as mechanics on the building. It is true he has acquired a lien under the ' act of 1832, by the registration of his judgment at law and filing his bill, but that is subordinate to the lien of these mechanics given by the act of 1846. They must therefore be first paid, and the balance of the fund, after the payment of all costs, will go to him.

Upon the two grounds, then, stated in this opinion, we consider the decree of the chancellor erroneous, and it must be modified as above stated, and the cause remanded.  