
    The President, Directors and Company of the Planters Bank of the State of Mississippi vs. William B. Dodson.
    F. contracted with D. to furnish materials and prepare them for erection into a house; accordingly D. did so, and took from F. before the house was erected, a lien on the materials thus prepared for the payment of the labor and materials ; F. employed other workmen, who furnished additional labor and materials, and nearly completed the house, working up the materials prepared by D. in it; when F. sold it to P. who had full notice of the debt due to and lien of D. After the purchase P. paid some of the cost of completing the house left unpaid by F.; finished the house entirely, and added also other buildings to it. D. filed his bill to subject the house and lot to the satisfaction of the debt due him; and a sale thereof was decreed; held, that D. had no mortgage on the lot, and on only a portion of the lumber and labor in the house, and it would therefore be unjust to allow a sale of the whole property to the payment of D.’s debt, to the exclusion of P., who had discharged liens for work and labor on the property; that as to those liens thus paid off, P. should be entitled to an equal lien with D. according to the respective amounts ; but should not be entitled to any lien for the buildings erected by him on the lot, subsequent to his purchase.
    Where a purchaser of property pays off a prior incumbrance; and it is attempted to subject the property in his hands to still other incumbrances, existing at the time of his purchase, a court of equity will substitute him to the rights of those incumbrancers whom he paid off.
    On appeal from the superior court of chancery : Hon. Robert H. Buckner, chancellor.
    
      On the 7th day of December, 1840, William B. Dodson filed his bill, stating that Edward P. Fourniquet, being in debt to him in the sum of $8254 97, evidenced by four bills of exchange, as recited in “ the written lien 2 exhibited with the bill, executed that lien “or mortgage” to secure their payment. The exhibit was in these words, viz.:
    “ Natchez, April 10iA, 1837.
    “ Know all men by these presents, that I, E. P. Fourniquet, of the city of Natchez, do hereby acknowledge myself bound to W. B. Dodson, of the city of Cincinnati, in the sum of $^967 50, for which I have this day furnished him with my four following bills of exchange, viz.;
    Bill dated this day in favor of W. B. Dodson, at four months date, for $2060
    Same in favor of same, at six months date, for 2090
    Same “ “ at eight months date, for 2296 08
    Same “ J. W. Whitston, at six months do. for 1808 89
    Which bills I hereby acknowledge and give for the payment óf the said frame building now on my lot of ground, in the city of Natchez, which frame building I do hereby agree shall be held by the said W. B. Dodson, for the final payment of the said bills of exchange, be it found in' the possession, either of E. P. Fourniquet, or in the possession of any other person or persons whatsoever.
    Witness my hand, this day and year above written.
    E. P. FouRNiquet. [seal.]”
    The bill further stated, that this lien had been duly recorded; that the bill for$2090, and the one for $2296 08, were still due; judgment at law had been rendered upon them, and a return of nulla bona obtained. That since the execution and record of this lien, the President, Directors and Company of the Planters Bank, had purchased the lot and buildings mentioned in it of Fourniquet, with full notice of complainant’s lien. The prayer was for a sale of the mortgaged premises to pay the debt due, and for other relief.
    
      At the same term complainant filed an amended bill, in which is described the location and character of the house and lot, by metes and bounds; that Fourniquet was, at the time of the contract, the cashier of the bank, which had full notice that the lot and house described were the house and lot intended in the mortgage ; and that they knew Fourniquet had not paid complainant for the labor and materials expended by him in the erection of the building. The Bank and Fourniquet were made defendants. They demurred, but their demurrer was disallowed, and they afterwards answered.
    The Bank, in its answer, denies that the exhibit of the bill is a mortgage; it states, that about the 15th of March, 1839, it purchased the house for the sum of $25,000, a portion of the debt due from Fourniquet to the Bank, with notice of the claim of complainant, as contained in the exhibit to the bill; but they assert that when that exhibit was made no frame or other building was on the lot, a circumstance of which they were not apprized until since the filing of the bill. That the bills of exchange described in the exhibit were given for the lumber to be used by Fourniquet in the contemplated building to be erected by him on the lot, and the exhibit was written for the sole purpose of reserving a lien on the lumber, and not on the lot. That Dodson afterwards abandoned the lien, and permitted Fourniquet, with this and other lumber and materials, at a cost of about $28,000, to finish the house ; and permitted, without opposition, the other mechanics to assert their claims for work done and lumber furnished to the house, to the amount of $20,000, which were paid by the Bank and by Fourniquet; by which means Dodson had lost, if he ever had any lien. That the materials furnished by Dodson were, with his knowledge, used in the building, and so intermingled with other materials as not to be distinguished from them, whereby his lien on the specific lumber was parted with. That Dodson’s lumber was not more in value than one-fourth of the materials furnished to ibe house. That the Bank, after its purchase, had-contributed $900 towards its completion; had in repairs and outbuildings expended $2200; and in paving, $764 30.
    
      Fourniquet’s answer set up the same matters that were contained in the answer of the 'Bank; it states that the exhibit referred to was written a year before any buildings were erected on the lot; that the balance due Dodson was a balance of upwards of $ 19,000, he owed him for labor and materials furnished by Dodson to erect five frames for houses, to be put on this lot; besides this, he had expended for other labor, materials, &c., upwards of $11,000, and the Bank had expended a considerable sum.
    That when Dodson contracted to furnish the five frames for the lot, he agreed to furnish materials and labor at the lowest cash Cincinnati prices; but the respondent had since learned that the book of prices by which Dodson charged him, and he settled with him, was twenty per cent, higher than the cash market price, by which Dodson defrauded him of $3800, which he claimed to set off against the debt due complainant. The answer was made a cross-bill as to this point. The answer of Dodson denies fully this charge of Fourniquet’s answer.
    Thomas Seaton testified that no buildings were erected on the lot until after the fall of 1837. In the early part of that year nearly all the materials necessary for the completion of the carpenter’s work of the building now on the lot, were lying scattered over the lot; those intended for the inside of the dwelling he covered by a temporary shed. They were after-wards used by Fourniquet in completing his buildings on the lot. The witness was employed by Fourniquet to build the house, and to furnish such materials besides as might be required. The material on the lot, furnished by Dodson, was of the value of about $9000, according to the then prices.
    The witness did all the carpenter’s work, and furnished some materials. His bill amounted to $2000 for the work; for extra work and materials it was $1992 20. The bill of William Yandell, the plasterer, was $1800; the brick work cost $3000; the painting and glazing about $600. Other items, not included in the above, amounted to $1500. The witness described the building erected on the lot as a very handsome and expensive one; worth, independent of the lot, $21,000, and built of the very best materials. The present value of the lot and buildings was $13,000. The witness had a mechanic’s lien on the property, amounting to $2750, which was paid by the Bank to him. The materials furnished by Dodson, and on the lot before it was built on, were about one half in value of all the materials used in the building. At the time the building was erected the lot was worth about $4000; without the building it would -now be worth $1000. The materials furnished by Dodson could not be separated from those furnished by others; they could hot be identified.
    William Yandell testified to the same things.
    Rhasa Parker testified, that in the spring of 1837, some difficulty in settlement arising between Dodson and Fourniquet, he and Andrew Brown were appointed by them to measure the work and lumber then on the lot. The materials were all worked up ready for instant erection into a house. The witness and Brown measured the work, and found that Dodson had fully completed his contract, and upon their award to that effect Dodson and Fourniquet settled. The building was subsequently raised and finished.
    Andrew Parker, in effect, testified to the same matters.
    H. D. Mandeville, cashier of the Bank, for the defendants, testified that the Bank gave Fourniquet $25,000, in his indebtedness to the Bank for the house and lot. Since the purchase the Bank had finished the house, at a cost of $1669 15; had erected a brick stable and outhouses, at a cost of $2127 25, and had paid Seaton $2721 28, for which he had a lien on the house, and charged that sum to Fourniquet. The witness proved that the Bank knew of the lien held by complainant before it purchased of Fourniquet, and made the following agreement with him, in March, 1839, viz.:
    “ This Bank agrees to take E. P. Fourniquet’s house and lot, corner of Rankin and Washington streets, at $25,000, to be free from all incumbrance; but as there are incumbrances on the same, one to W. B. Dodson for $4000, and one to Thomas Seaton for $1325, they are at present to be deducted from said $25,000; but should said Fourniquet satisfy, pay or relieve the same, then the Bank is to credit said Fourniquet on his paper' for said amount.”
    The witness further proved that there was then on the books of the Bank, to the credit of Fourniquet, the sum of $5919 68, in which this sum of $4000 was included.
    Upon this state of pleading and proof the chancellor ordered a reference to a commissioner to compute the amount of principal and interest due Dodson, and decreed the"house and lot to be sold by a commissioner tq pay it. From this decree the Bank appealed, and Fourniquet subsequently united in the appeal.
    
      Montgomery and Boyd, for appellant,
    contended,
    1. That the deed held by Dodson did not show with sufficient certainty what lot or property was intended.; and could not be helped out by parol. They cited 1 Pick. 31; 16 Mass. 86; Sug. Yen. 114, 115; 2 Cruise Dig. 206, § 29; 221, § 33; 4 Mass. 205; 13 John. R. 102, 103; 8 Peters, 84; 3 How. (Mi.) R. 232; 1 Tomlin’s Law Die. tit. Description, 551; 1 Shep. Touch. 245; 18 John. R. 107; 4 Kent, 466; 5 Wheat. 359; 2 Stark. Ev. 546.
    2. If the lien set up was a mechanic’s lien, it was not maintainable as such under the law. Rev. Code, 473; Act of 1830, p. 48 ; How. & Hutch. 377.
    3. The giving the bill of exchange raised the mechanic’s lien, if it ever existed. Chit, on Bills, last edition, Appendix, 914.
    4. The agreement contained no words of conveyance or transfer ; it was a mere agreement that Dodson should hold the building; his right consisted in his holding it; when he parted with the possession, and no longer held it, he lost his lien.
    5. The demurrer should have been sustained to the bill.
    6. Thé case should not, under the pleadings and proof, have been referred to a commissioner, merely to compute the amount; it was a clear case for an account to be taken regularly, upon notice, with power to introduce proof.
    7. The mortgage, or lien claimed by Dodson, was only on the materials as worked up by him, it could not include the house and lot, upon the principle of confusion of property, for several reasons. 1st. The materials and labor furnished by Dodson were less in value than those used in the completion of the house. 2d. The materials were not mixed up with the others, without the consent or knowledge of Dodson. 3d. The value of the materials furnished by Dodson, and used in finishing the building, can be readily ascertained. 4th. If Dodson’s materials were used in invitum, it only throws the burden of proving value on the defendants. 15 Yesey, 442; 4 Metcalf,-306; 5 John. R. 348; 2 John. C.R. 108.
    8. It was inequitable to decree Dodson the sale of the whole property; when his own act in allowing the materials to be worked up in the house produced the difficulty.
    9. A correct basis for a decree would be to order the proceeds of sale distributed pro rata, between Dodson and the Bank.
    10. The liens paid by the Bank ought clearly to be allowed, as the liability of the property for them was brought about by Dodson’s act in not holding on to the frames.
    
      Quitman and McMurran, for appellees.
    1. The agreement between Fourniquet and Dodson, though not in complete form, is clearly an equitable mortgage. 3 Pow. on Mort. 1049, et seq.; 2 lb. 521; 3 Vesey, Jr. 576, 582; Card v. Jaffray, 2 Sch. & Lef. 374.
    2. The language, “ frame building on my lot in Natchez,” was sufficiently definite, as Fourniquet had but one lot in Natchez, and that could be identified by parol.
    3. The Bank clearly had notice, before it purchased, of Dodson’s lien, and the property on which it was intended to apply, sufficiently specific to constitute it an equitable mortgage. Case of Sir Simeon Stewart, 3 Yesey, 576; 2 Sch. & Lef. 381.
    4. Dodson had a mortgage on the buildings on the lot; others were worked up with them by Fourniquet. This gives Dodson a mortgage on the whole. 4 Met. R. 306.
   Mr. Justice Clayton

delivered the opinion of the court.

The question so much discussed in this cause, as to the character and the validity of the instrument executed by Four-niqnet to Dodson, need not be decided. That it constituted a lien on the premises at the time of the sale, to the extent of $4000, was acknowledged by the Bank, and that sum reserved out of the purchase from Fourniquet, and set apart for its payment. This was in March, 1839. No just ground is perceived, on which an evasion of this liability can now be placed. Nor was it competent to the Bank, by the erection of subsequent buildings, or the creation of subsequent liens, to diminish the security thus recognized. Indeed, by an action for money had and received, this sum might have been recovered from the Bank by Dodson, as it was paid by Fourniquet for his use.

Apart from this recognition, it might be difficult to adjust the various equities of the parties. The lien created by the instrument, was upon the materials of a building ready to be erected, and afterwards erected upon the lot of Fourniquet. The' mechanics who put it up obtained liens which they afterwards enforced. These were paid off by the Bank, and for their amount, the Bank would have a right to stand in their place. Dodson had no lien on the lot, either express or implied.

It would not have been easy, therefore, to dissever the materials on which his lien subsisted, from those on which he had no claim. The severance would have been the destruction of both.

It would not be just to permit the expense of buildings erected by the Bank, after its purchase, to operate to the exclusion of the previous lien of the complainant. Nor, on the other hand, would it be just to permit the complainant holding a lien on part only of the materials, to get the price of the whole building and lot in payment of that lien. These are equities which have to be adjusted between the parties; and there is no very distinct scale by which to do it. The legal liability of the Bank, upon the contract with Fourniquet, is another consideration.

The complainant Dodson is entitled to the $4000, with interest from the time of the purchase by the Bank, to stand as a charge upon the premises. The value of the lot and the buildings, at the time of said purchase, should be ascertained; also the amount paid by the Bank for the completion of the building on which Dodson’s materials were employed; but not of other buildings erected by the Bank-after the purchase. Interest to be calculated on these sums. The lot and buildings must be sold, and the proceeds divided between the complainant and the bank, pro rata, in proportion to the amount of their respective claims, thus ascertained.

The decree must be reversed, and the cause remanded for farther proceedings, in accordance with these directions;

Decree reversed.  