
    Gillespie vs. Bradford and others.
    
    The lien given to mechanics by virtue of the acts of 1825, ch. 57, and 1829, ch. 26, for the time limited in those acts, will hold against a subsequent purchaser from the person who procured the building to be erected, and a subsequent judgment against him, but will not supercede a previous lien for unpaid purchase money, by mortgage or judgment.
    When land is sold, and a bond given for title, when the purchase money is paid, a mechanic who builds on the land at the request of the vendee, may compel a sale of the land, to pay the purchase money first, and then his debt, under the acts of 1825, ch. 57, and 1829, ch. 26.
    On the 24th of December, 1830, the defendant, Bradford, sold to Rolla P. Raines, two lots, lying in the town of Winchester, for the consideration of $412 50, and took Raines’ notes, payable in one, two, and three years after that date, for the purchase money. Bradford executed to Raines his title bond, covenanting to make him a conveyance, when the consideration money was paid.
    Raines employed the complainant, a brick-layer and plaisterer, to build for him a house on one of the lotsj which he did. Raines being unable to pay Gillespie for the work and materials furnished by him in the erection of said dwelling house, Gillespie brought suit and obtained a judgment against him for the sum of $195 50.
    Gillespie filed his Bill to enforce the lien of a mechanic, pursuant to the acts of 1825, ch. 57, and 1829, ch. 26, making Bradford, who holds the legal title, and Raines defendants.
    
      II. L. Turney, for complainant.
    This act of assembly was passed for the benefit of mechanics, a class of the community who are not presumed to be conversant in the refined distinctions of the law, and it was passed for their benefit and protection, and if the rule insisted on by defendants is to prevail, it will have the effect to deceive and mislead them. They never, when contracting to build a house, think to enquire whether their employer has the legal title; he has the possession, and it is called ¿nd known, or understood to be his lot, and the statute gives him a lien on the house and lot for his labor and materials. This, in his mind, is sufficient security, and but for this statute he would require security before he would do the work.
    Raines conveyed these lots and all of his other property, both real and personal, to J. Beckard, to'secure the payment of the debt to Bradford and Speyker and others, and under and by virtue of which, they claim all of the property of Raines, and prevent complainant from subjecting' any part thereof to the payment of his judgment. If he attempts to levy on the personal property, he is met with the deed of trust in favor of Bradford and Speyker; and now, when he seeks to enforce his lien on the house and lot, he is told that they have the legal title; complainant insists that Bradford and Speyker cannot be permitted to claim under the deed of trust, and at the same time defeat the complainants lien on said lot.
    It is charged in the bill and admitted in the answer,' that when the work was progressing, complainant enqui-red of Bradford if he had any deed of trust on said lot, and that Bradford informed him that he had none, but informed the ^complainant of his title. A fact alleged by way of discharge or avoidance must be proved. 2 John. Ch. Rep. 89.
    
      J. Campbell and Goodwin, for defendants.
    It is insisted by Bradford, that he holds the legal estate, and a lien for the original purchase money, and upon the sale of the lots, which is superior to the claim of complainant. Gillespie has no lien, or if he has it, that it cannot overreach the lien of Bradford. Hay. and Cobb, 221.
   Catkon, Ch. J.

delivered the opinion of the court.

As complainant comes in to enforce the equity of R* Raines, it will be useful to inquire what relief Raines is entitled to by the general powers of the court; for we must take it) the legislature provided a lien in favor of builders with a view to the doctrine applicable to a Court of Equity, and that the well settled principles governing the rights of venders and purchasers, and the powers of the court specifically to decree the performance of contracts, was not overlooked.

If a contract has been entered into for the sale and purchase of land, by competent parties, and is in its nature, and the circumstances of it unobjectionable, it is as much in the course of the court to enforce it, as it is to give damages at law. 9 Ves. 608: 1 Mad. 287. Long before Gillespie built for Raines, Bradford’s lien existed. This lien he had a right to enforce by bill, causing the premises to be sold for the unpaid purchase monejr, regardless of-appreciation, or depreciation of value at the date of the sale. This is the established doctrine and practice in Equity, in this State. Nor is a case recollected, since the English Court of Chancery first assumed jurisdiction, by bill and subpoena, to enforce contracts for the sale of land in specie, where the vendor was deprived of his legal title without having received the purchase money. Here Gillespie comes in on Raines’ equity, and asks a specific decree on behalf of the vendee, to which the vendor submits, on being paid the price of the land, and until which is done, by the terms of the contract, as well as the settled law of the court, the contract cannot be enforced. 3d Atkins, 188.— Has the legislature altered the law? Was it intended to put it into the power of an extravagant vendee to erect improvements on the land, that would cost more than it was worth thus improved, and give the builder a lien for the improvements, superior to that of the vendor, and destructive to his older equity? If so, the statute must be most explicit to this effect.

The statute of 1825 makes the substantive provision on the subject. It provides, that, hereafter, when mechanics construct buildings upon any lot of ground in any town by special contract with the owners thereof, they shall have and possess a lien upon each building and the lot of ground thereto attached, not exceeding one acre, for the just value of his labor, and materials furnished by such mechanic for constructing such house or houses; and the owner of such ground shall not be able to convey the same free from the said lien created by this act, nor shall the s'ame be sold by legal process so as to avoid said lien, unless judgment is rendered before such building was commenced.”

By the second section, the lien is to continue one year after the building is completed, and until after the termin-nation of any suit that may be brought to establish the purchasers claim. This act only extended to cases where one person uudertook the whole building. The act of 1829 amends that of 1825, and extends the line separately to each person who may do part of the work or furnish part of the materials. This statute seems too plain for serious doubt to arise on its construction. Yet such doubts have arisen, and the Chancellor’s decree has been appealed from, and the determination of this court required. We think the statute has reference to the existing title of him who has the building erected, such as it was when the improvement commenced. The mechanic’s lien will hold good against a subsequent purchaser from the person who builds, and against a lien by a subsequent judgment against him, but has no reference to previous liens for purchase money unpaid by mortgage or judgment. The decree will be affirmed with costs.

Decree affirmed.  