
    William D. English and Thomas Turner vs. Julien L. Foote and Davis H. Hoopes.
    The lien given to mechanics by the act of 1838, (H. & H. 378,) upon buildings erected by them, for their labor and materials furnished, can operate on nothing beyond the right of the person who employs them. A vendee of a lot holding only a bond for title when the purchase-money shall be paid, cannot, if he puts improvements upon it, dispose of them, unless subject to the rights of the vendor. A mechanic cannot therefore sell or dispose of a house built by him on a lot to which his employer had only a bond for title, except subject to the rights of the vendor of the lot.
    H. sold a lot to F. and gave him a bond for title when the purchase-money should be paid; the bond was recorded in the proper office, and F. was placed in possession of the lot. F. employed E. and T. who were mechanics, to do part of the work on a house he was building on the lot; F. being unable to pay H., surrendered to him the lot with the improvements erected thereon ; E. and T. then filed a bill to subject the building to the payment of their account against F : Held, that F. could not have disposed of the improvements, except subject to the rights of H.; E. and T. occupy no better position than F., and their lien must therefore be also subject to the prior rights of H.
    As a general rule, whatever is annexed to the freehold becomes part of it, and cannot be severed from it. And this rule applies with all its strictness between vendor and vendee.
    ERROR from the circuit court of Claiborne county; Hon. George Coalter, judge.
    On the 16th day of. August, 1842, William D. English and Thomas Turner, filed their bill in the circuit court of Claiborne county, against Julien L. Foote and Davis H. Hoopes, alleging that in the fall of 1839, they, being mechanics, were employed by Foote, to perform certain work as bricklayers and plasterers, on a dwelling-house, then being erected on the S. W. | of N. E. | of square No. 34, in suburb St. Mary, adjoining the town of Port Gibson, by and for Foote, who was in possession of the said lot.
    That they did the work in pursuance of said employment, to the amount of $229 50, due March 2d, 1840, as per bill of items filed as Exhibit A.
    That after the completion of the work, and within six months after the commencement thereof, they, in order to secure to themselves the benefit of their lien on the house for the work so done, to wit, on the 4th of May, 1840, commenced an action in the circuit court of Claiborne county, against Foote, on the said account, (Exhibit A,) and at the November term, 1841, recovered judgment thereon against him, for $229, (and they filed a transcript of the record in that case, as Exhibit B.)
    That since the work was done, Foote had sold the lot to the defendant, Hoopes. The bill makes Foote and Hoopes defendants, and prays a decree for the sale of the house to pay the debt due to complainants, and for other relief.
    Hoopes answered that he had no knowledge of the work and labor said to have been performed. That he owned the lot, and was the owner of it when the work was performed. That on the 8th of October, 1839, Foote gave him a note for $371 50, due January 1st, 1841, and another for $398 25, due January 1st, 1842, and that he gave Foote his bond to make Foote a title to the lot on his paying the notes at maturity. That Foote did not pay the notes, and he, (Hoopes,) has never made a deed, and he denies that the building is liable for any work done-at Foote’s instance. He further insists that complainants have a judgment at law against Foote, and that they ought to be compelled to pursue it.
    Foote, in his answer, admits that he employed the complainants in the fall of 1839, and that they did the work, and that they sued him, as alleged, and got judgment. That although he had hoped to be able to purchase the lot, yet he has not been able to do so. The title has always been in Hoopes, and not in him, (Foote.) That the complainants’ account is principally for building a chimney, and finding materials, for the accommodation of this defendant, and he would have paid for it, if he could. He cannot but think that the complainants looked to him alone for payment.
    The case was submitted on bill, answers, and exhibits, and at May term, 1845, the court dismissed the bill, and decided, that the complainants were not entitled to a lien on the house. To reverse which decision, the complainants now prosecute this writ of error.
    
      II. T. Ellett, for plaintiffs in error.
    For the plaintiffs in error it is insisted, that a clear case is made out by them, to have the building subjected to the payment of their claim for the work done, and the materials furnished. The act on which we rely is that of February 15th, 1838. H. & H. 378.
    The employment of the appellants as mechanics, the performance of the work, and the amount of it, are all admitted by the answers, or not denied. So also is the allegation that suit was brought within six months after the work was commenced. These are all the requirements of the statute, and the case is precisely similar to that of Andrews v. Washburn, 3 S. &. M. 109.
    Two points of defence seem to be relied on.
    1st. That Foote, who was in possession of the land, and who contracted for the work, did not own the legal title in fee, but that it remained in Hoopes.
    Now Foote, being in possession of the lot, and having the right of possession, it can surely make no difference as regards the right of the mechanics to 'their lien upon the building, whether his title to the fee was legal or merely equitable. The object of the statute is to secure payment to the mechanic of the price of his labor, by subjecting the result of his industry and skill to a specific lien for that purpose. The claims of the mechanic are favored in law, and the courts will uphold the policy of the country in giving the statutes a free interpretation in favor of the laborer. They were made to secure him the reward of his toil, and should not be baffled by any subterfuge. Buck v. Brian, 2 How. 874.
    
      What better right has Hoopes, as against these mechanics, to enjoy the building partly erected by their labor, because he had the legal title to the lot, than Foote would have, holding only an equitable title 1 The statute says nothing about the title of the ground, the house being regarded as a distinct thing.
    This very question was presented in the case of Buck v. Brian before cited, and was overruled. The act of 1821, is like that of 1838. Buck contended that Wilson and McDonald, who contracted with Brian, had only an equitable title, and that the legal title was in Hughes, from whom Buck had procured it, but the court disregarded the point.
    
      2. The appellee, Hoopes, further contends that he had a lien on the lot for the payment of the purchase-money; that this lien attached upon the house, and was older than that of the mechanics, and that, by the statute the lien of the mechanic is preferred only to subsequent encumbrances.
    This argument is fallacious. The statute treats the building as a distinct thing from the land. The object in view is to secure payment to the mechanic for his labor. It does this by giving him a lien on the building “in preference of any other lien originating subsequently, &c.” The statute evidently refers to liens on the building, as contradistinguished from liens on the land, and it could not have been contemplated that, wherever there was a previous incumbrance upon the land, the mechanic should be deprived of his security. This would be to give to the prior incumbrancer a benefit for which he had not stipulated, and to take away protection from the mechanic in the very cases where it is most needed.
    The present is like the case of an instantaneous seizin, where a man purchases land, and at the same time gives a mortgage upon it for the purchase-money. The whole is regarded as but one transaction, and the seizin being only for an instant, there was no time for the rights of third persons to attach. The mortgage binds the land in preference to older judgments against the mortgagor; and his wife, as against the mortgagee, is not even entitled to dower.
    Here the lien of the mechanic attached upon the building as fast as the work progressed, and in no fair sense can the lien of Hoopes, the creditor, be considered prior to, or elder than the claim of the mechanic. His is, in fact, a subsequent in-cumbrance on the house, and he is only entitled to what is left, after the house is paid for.
    Cases are cited by the defendants in error' to show that where a party has a concurrent remedy at law, and in equity, if he elects to proceed in one forum, he cannot afterwards resort to the other. The principle has no application to this case, for here the statute only gives the remedy in equity on the condition that the party shall first have sued at law, within six months after the commencement of the work, there being no written contract.
    
      Hoopes, for defendants in error..
    It is contended, there is not the slightest ground for the interposition of a court of equity. First, the complainants bring a suit on their account against Foote in the circuit court, and obtain a judgment. After having selected their forum and subjected the defendant to the costs and perplexities of a suit in that court, they now seek the aid of another forum, and to subject the defendant to the costs of another suit, and that too, without showing that their judgment at law could not be collected ; and without even showing that an execution has ever been issued -on their judgment. Their bill shows nothing of this kind, and hence might have been demurred to. But it is a principle in equity, that when a demurrer would hold to a bill, the court, though the defendant answer, will not grant relief on the hearing of the cause. Milford’s PI. 157, Story’s Eq. PI. 352.
    It is also a well-settled principle, that when there has been an adjudication of a court of competent jurisdiction, the matter in controversy is at an end, and the losing party cannot go into another forum to try his rights there; if he could, litigation would indeed be interminable. In all cases of concurrent jurisdiction the court which first gets jurisdiction must decide finally. Smith v. Mclver, 9 Wheat. 552,
    
      If the complainants were entitled to a mechanic’s lien at all, which is denied, they could have instituted their suit in the first instance in a court of chancery, but having chosen a different jurisdiction they must abide by it. “ The law abhors multiplicity of suits, and it is a chosen object with courts of justice, to put an end to litigation.”
    Although a court of equity may sometimes lend its aid to enforce the judgment of a court of law, yet this aid is never given when the complainants might have brought their suit at first in a court of equity, or where it does not appear that an execution has been issued, and returned “nulla bona.” For aught that appears to the contrary, the complainants, if they had issued an execution on their judgment, might have made, their money. How then can it be said that they present a proper case for the interposition of a court of equity 1
    
    But again, even if the suit had been at first instituted in a court of chancery, the complainants could not have enforced a mechanic’s lien on the house.
    The suit in the circuit court, as was stated by the solicitor of complainants, in his brief in the court-below, was insituted under the act of 1838. H. & H. sect. 24.
    This act provides, that every dwelling-house, &c. which may be erected within the limits of this state, shall be subject to the payment of the price contracted therefor, or in case there be no contract, of so much as reasonably ought to be paid for the work and labor done, and performed, and the materials or implements supplied in the erection of the building, &c. “in preference to any other lien originating subsequently to the commencement of the building, or date of the contract.” Here is the extent of a mechanic’s lien in any case under this act. It is not a general lien, taking precedence over all others. It is only a lien in preference to those liens originating “ subsequently to the commencement of the building, or date of the contract.” It was not intended to give, nor was it competent for the legislature to give, a mechanic, or any other person, a lien on a building, in preference of older liens.
    If Foote ever had any interest in the house and lot, it had been sold under judgments against him, older than the judgment of complainants.
    Hoopes never parted with the title to the lot of ground. The complainants must have known at the time their account was contracted that Foote had no title to the property, for the contract between him and Hoopes was on record. They were bound to notice it. The owner of land, owns all the buildings and improvements thereon. “If a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields 'and meadows.” 2 Black. Com. 18.
    If A. builds a house on B.’s land, it is as much B.’s as if B. built it himself. Co. Litt. 53, 56.
    If a man contracts to purchase a lot of ground, and builds a house on it, and then fails to comply with his contract, could he remove the house % Certainly not. It has become a part of the realty, and could neither be removed, nor sold separately from the lot.
    The case in 2 How. 875, referred to, in the argument in the court below, is not analogous to the present. There the contract was reduced to writing and recorded, thus giving notice of it to all the world, the property had not been sold under older judgments against the defendants, and the suit was originally brought in the chancery court. In this case, the suit was brought in the circuit court, no execution appears to have issued on the judgment there rendered, there was no special contract on record or elsewhere, nothing to show that complainants claimed a mechanic’s lien, and the property has been sold under older judgments.
    As to the argument sometimes advanced, that the claims of mechanics are favored in law, if there was any truth in it, it would be a deep reflection on courts of justice. The law, when properly administered, can know no favorites, all stand upon an equality, and no man, whatever may be his occupation, can reasonably expect, that his rights shall be more sacredly guarded than the rights of any other member of the community.
   Mr. Justice Clayton

delivered the opinion of the court.

This case involves the construction of the act of 1838, in regard to the lien of mechanics.

The bill was filed to subject the building, a part of which was erected by the complainants, to the payment of their account. The defence set up is, that Foote, who was in possession, and who employed the mechanics, had only a bond from Hoopes, binding him to make title, when the purchase-money should be paid; that in fact none had been paid, and the lot had been surrendered to Hoopes; that the title bond was upon record, and the complainants thus had notice of the rights of Hoopes.

It is conceded, by the counsel of the complainants, that they cannot go upon the lot for payment, but it is insisted that they may go upon the house.

The statute provides that every building shall be subject to the lien of the mechanic in preference to any other subsequent lien. H. & H. 378. It is very clear, however, that the lien can operate on nothing beyond the right of the person for whom the building was erected. Frazier v. Falconer, 7 S. & M. 235. Foote had no right to the lot, except subject to that of the vendor, which under the circumstances was at least equivalent to a mortgage. Tanner v. Hicks, 4 S. & M. 294. Indeed, it only amounted to a conditional sale, and if the contract were not complied with by the vejidee, it might be rescinded by the vendor. In that event, the purchaser would not be entitled to the improvements, or to compensation for them. The lien of the vendor was prior to that of the mechanic. The latter could stand in no better condition than the vendee; and he could not dispose of the improvements unless subject to the rights of the vendor. These complainants must occupy the same position.

As a general rule, whatever is annexed to the freehold becomes part' of it, and cannot be severed from it. There are many exceptions to the rule, but it applies with all its strictness between vendor and vendee. Stillman v. Hamer, 7 How. 423; 2 Kent, 345.

Decree affirmed.  