
    [Pittsburg,
    September 30, 1825.]
    
      HERN and Co. against HOPKINS.
    IN ERROR.
    A claimant who does not file his claim, or institute a suit within six months after the building is finished, but sues and recovers judgment within two years from the commencement of the building, acquires no lien if the building is not sold by execution within the two years, notwithstanding a sale during that time, by the owner, to another person.
    If a claim is filed after six months from the time the work is finished, no lien exists, though the claimant has taken out a scire facias, and recovered judgment within two years, from the commencement of the building.
    This case depended on the act securing to mechanics and others, payment for their labour and materials, in erecting houses, &c., passed the 17th of March, 1806. Purd. Dig. 545. 4 Sm. Laws, 300. The plaintiffs claimed a lien, under this law, in preference to a judgment creditor. The following were the material facts of the case.
    
      William Robinson, jr. who was the original owner of the property on which the lien was claimed, commenced the building of a dwelling house, some time previous to the 5th of July, 1819; on which day he conveyed the premises, (the house being then finished, except the painting and glazing,) to A. Hopkins, who employed the plaintiffs to paint and glaze the house. The work of the plaintiffs was finished on the 4th of August, 1819. Hopkins paid no part of the purchase money; but, on the 14th of September, 1819, gave a judgment b.ond to Robinson, in the penalty of four thousand dollars, to secure the payment; on which bond, judgment was entered on the day of its date. The plaintiffs filed their account in the office of the prothonotary, on the 28th of February, 1820, and sued out a scire facias to the subsequent term, on which a judgment was confessed by Hopkins, on the 25th of March, 1820, which was less than two years from the commencement of the building. In the court below judgment was rendered for the defendant.
    
      Arguments for the plaintiffs. — The first question that arises in this case, is, what shall be considered as the commencement of the building; under the act of the 17th of March, 1806. (Purd. Dig. 416.) It is enacted “ that every dwelling house constructed, &c., shall be subject to the payment of any debts contracted, by reason of work done, or materials found by any painter, glazier, 5'C.,before any lien that originated subsequent to the commencement of such house. Provided that no such debt shall remain a lien longer than two yearsfrom the commencement of the building, unless an action be commenced or claim filed, within six months after performing the work.”
    From the 4th of August, 1819, the time when the painting and glazing was done, until the 28th of February, 1820, the date on which the lien was filed, being more than six months, the lien of the plaintiffs, (unless continued by the scire facias,) would be limited to two years from the commencement of the building. And as it is conceded that this limitation took effect, before the sale of the property, if the commencement of the building by Robinson is to be considered the time from which the two years must run, it becomes incumbent on the plaintiff to satisfy the court, that by a proper construction of the act referred to, the word commencement must have relation to the period at which the unfinished premises came into the possession of Ji. Hopleins.
    
    The case of the American Fire Insurance Company v. Pringle, 2 Serg. & Rawle, 138, is considered by the defendant as settling the question: in that case, A. commenced the building, and sold it to B., and took a mortgage to secure the purchase money. B. went on and completed the building; anditwas decided (Judge Yeates dissenting) that the lien of the mechanics, employed by him, had relation to the commencement of the building by A., and took precedence of the mortgage.
    But it is apprehended that the court, in this decision, intended to confine itself to the case before them, and not to decide a principle universally applicable. And such construction of the intention of the court will be found correct, by attending to the language of the chief justice, in which Judge Bhackenridge and the dissenting judge concur ; wherein it is conceeded, that there are cases in which the completion of the work might be considered as a new building. The cases suggested by way of illustration are, where houses are finished sufficiently for particular purposes, but not for dwelling houses; and are, after remaining in that semi-finished state for years, afterwards completed.
    As it is admitted by the court, that a severe literal construction of the lien law could not in all cases further the intention of the legislature, it must be a necessary consequence, that the court must inquire into the peculiar circumstances attending each case; in order to ascertain whether the policy of the law would best be promoted by adhering rigidly to its letter, or acting in conformity to its spirit.
    The term commencement of the building, is admitted.to be a relative term; it may mean the original inception of the undertaking ; or it may mean a converting a ware-house into a dwelling house ; this is undoubtedly a plain rational interpretation of the words.
    
    It must be obvious, that if these words are relative in relation to the undertaking, they must likewise be relative in relation to the individuals who undertake, and may be applied as best would comport with the equity of the case, either to the person under whom the building first originated, or his. vendee under whom it was completed. Is not the present a case in which such equitable considerations exist, as would induce the court to depart from the strict language of the lien law? William, Robinson, (whose assignees are entitled to the money, if the judgment of the court of Common Pleas should be sustained,) was the original owner of the lot on which the building is erected. He commenced the building, and on the 5th of July, 1819, sold it, in its unfinished state,, to Hopkins, gave him a deed of conveyance; and gave no notice, actual or constructive, that the purchase money was unpaid. The plaintiffs, under the full belief that Hopkins was the owner of the property, contracted with him to finish it; to him, and his proprietorship, they looked for remuneration for their labour. To what period did they suppose the commencement of their lien related ? Would it go back in their minds to the time (probably more than two years) of Robinson's commencement of the building; to suppose that such was their expectation would undoubtedly be a fallacy. It appears that Robinson sold the permises for two thousand dollars, and instead of immediately taking security for the purchase money, and entering that security of record, he wisely lies by until Hopkins has completed the house, then takes his judgment bond and enters it; it is certain that had this lien existed against the property at the time the plaintiffs contracted to finish it, they would have made no such contract; Robinson had actual notice of their lien, he had sold an unfinished house, waits until the vendee had finished it; and finding the mechanics believed their lien commenced with their labour, enters up his judgment against the finished premises, to which the plaintiffs had (through his laches or fraud) been induced to give the additional value of their labour and materials. It is therefore contended that there is that strong equity on the part of the plaintiffs that entitles them to the most liberal construction, of which the act under which they claim is susceptible.
    The second question arising upon the record, is one of no little novelty; but it is believed, when duly considered, it will involve no perplexity. It is this. The lien having attached by the, filing of the plaintiffs’ bill, and a scire facias having issued, upon which judgment was rendered before two years had elapsed, from the commencement of the building, has the judgment on the scire facias relation to the time of the commencement of the building, (at which time the lien of the plaintiffs, in contemplation of law, commenced,) and does it extend the lien of the plaintiffs beyond two years from the commencement of the building, in such manner, as to entitle them to the preference, granted by the act of assembly over those liens which originated subsequent to such commencement ?
    The objection to the plaintiffs’ claim, is, that it was not filed within six months after the work done, and that he permitted two years to elapse from the commencement of the building, without urging a sale under the judgment; that by this neglect his lien was void.
    
      The answer of the plaintiffs is, that although they did not file their lien, until six months had expired after completing the work, yet they proceeded to issue a scire facias, and actually obtained a judgment, before the two years, from the commencement of the building had run.
    Had the sale taken place within the two years, the plaintiffs having obtained a judgment, would have been entitled to a preference over Robinson ; the lien having reference to the date at which the building was commenced, the judgment must likewise have relation to the same period. A scire facias for reviving a judgment, or for effectuating the purposes of any lien, must have relation to the date of the judgment or lien, so as to cut out liens intermediate, between the date of those on which the scire facias is issued, and of the judgment on the scire facias. Such is invariably the rule, in relation to proceedings under that writ. It is, with few exceptions, a judicial writ; in judgments post annum et diem, forming a continuation of the original action; in mortgages under the statute having a reference to the date of the mortgage ; when issued under the act limiting the lien of judgments, referring to the entry of the original judgments; from its very nature bearing relation to the date of the record on which it is predicated. In cases of liens of every description, the judgment on the scire facias takes force and effect from the date of the lien on which it is founded, instead of the lien, attaching from the rendition of the judgment. If we are correet in stating the principle, there is a simple and easy elucidation of the question.
    The entry of a judgment cm the plaintiffs’ lien, within the time of limitation, gave them a preference over Robinson’s judgment; if their judgment once obtained such preference, by what legerdemain are they to lose it; does the circumstance of their not having pressed a sale, under the judgment, destroy its binding effect ? Is the court prepared to say the judgment became void by this non user ? It is conceded that if the party had permitted two years to pass without converting his lien into a judgment, he would have been barred. But is there any provision in the act that bars the lien of the judgment on a scire facias. This judgment is limited, by the act, to the property on which the work was done ; is not that an additional reason for not disturbing it. By its reference to the lien of the'plaintiffs, this judgment has clearly the preference over that of Robinson; it is only by saying that the judgment is not in itself a lien, that the court can affirm the decision of the court below ; if the judgment is not void, the case is most clearly on this point with the plaintiff in error.
    
      Arguments for defendants. — The act of the 17th of Í17a»’c/¿,1806, introduced a new kind of lien before unknown; and gives the power of erecting or entering an incumbrance against the freehold or house of another ex parte, and without notice, and to the exclusion of common judgment creditors, entered subsequent to the commencement of the building. It, therefore, wisely provides, “ that no such debt, for work and materials shall remain a lien, on the said house or other buildings, longer than two years from the commencement of the building thereof, unless an action, for the recovery of the same, be instituted, or the claim filed, within six months after performing the work, or furnishing the materials, in the office of the prothonotary of the county.” As the act gives a partial, novel, and ex parte lien, it ought to receive as literal'a construction as the intention of the legislature will admit of, and such as will be most easily comprehended by the common mind. Now, on the mere reading the proviso it will be discovered, first, that in case the bill be' filed, within six months after the work is finished, he will have alien which he may keep alive as an incumbrance any length of time ; so as to retain its priority over all other incumbrances entered subsequent to the commencement of the building; and secondly, that if he omits to do this, he may have a lien for two years by filing his bill, and prosecuting it to a final sale of the property within that period. And if he fails to file his bill, in six months, or to prosecute it to a sale of the property within the two years, his lien is gone ; the provisoes or limitation of the act take effect against him.
    It may be said that appeals, writs of error, multiplicity of business in the court, and other causes, may prevent him from effecting a sale of the property within the two years. To this it may be answered, he ought to have taken advantage of the proviso expressly provided for this very difficulty, he ought to have filed his bill within six months; he has made his election, and if he suffers thereby, it is by his own laches; the act made full and express provision for him, and requires no .judicial construction in his favour. By adopting this literal mode of construction, which the words naturally import, every case is provided for : efficacy is given to every word which is so happily used in the proviso. Every word becomes strongly operative.
    A different construction would be calculated to mislead. Suppose Robinson had not sold the property, until six months had elapsed after the house was notoriously finished and occupied, would the purchaser, on reading the proviso, consider it necessary for him to take any farther precaution than to examine the prothonotary’soffice for liens; and finding none filed, to presume that all was paid. But it is said that Robinson gave no notice, actual or or constructive, that the purchase money was unpaid; and that he throughhis own laches or fraud lay by until the house wasfinishedby the purchaser, and then filed his judgment. Whereas the reverse is the fact. Mr. Robinson, finding he had acted unwisely in conveying, without security, an unfinished house, to be completed at the discretion of an embarrassed man; on the the 14th of September, 1819, one month and ten days after the work was finished, takes a judgment for the purchase money; thus giving four months and twenty days notice to the plaintiff, that within that time they should file their bill, or that his judgment would take precedence,by the express provision of the statute, after two years should elapse. If, therefore, Robinson had intended to practise a fraud against the plaintiffs, to obtain the benefit of their labour, he would have laid by till after the six months had expired, and then entered up his judgment. But Robinson gave them full and timely notice to file their bill, in such time, and to proceed in such a manner, as to secure to themselves a perpetual and general, or a limited lien, at their election. If filed in six months, a perpetual lien is secured; if after that period, limited to two years. If they proceeded by personal action, they would secure a lien on the house and lot both; if by scire facias, their lien would be only against the house. For the act of the 28th of March, 1808, expressly provides, “that no judgment, rendered on any such scire facias, shall warrant the issuing an execution, except against the building or buildings, upon which the lien existed. And the form of the scire facias in this case, as well as in all other cases of the kind, is, “ to show cause why execution should not be had against the house.” Now, as the plaintiffs did not file their bill till after six months had elapsed, and as they limited their lien to the house alone by scire facias, and did not proceed to sell within the two years the statute presumes, Robinson might fairly presume that the debt was paid; and, therefore, that not only the lot, but also the house was left to secure his judgment; and that he might proceed to sell the whole without the danger of the plaintiff’s lien interfering; and that if he run up the property at sheriff’s sale, so as to cover his own judgment, he would be safe; that after two years, there would be no conflict between his judgment and the plaintiffs’ claim, which had* been proceeded in by scire facias against- the house alone. Common prudence dictated to Robinson the propriety of his suspending proceedings on his judgment till the two years elapsed; believing that, in the meantime, the plaintiffs’ claim would be either paid or barred; and thus he would get rid of the conflicting lien which was then against the house alone. The statute evidently provides different degrees, and different modes of security: and if the plaintiffs have elected and pursued that which affords them the least security, it is their, own misfortune and folly, and not the fault of the law. There is no equity in their favour. There was no bad faith on the part of the defendant; and he ought not, therefore, to be postponed. It is decided “ That where no claim is filed, or action commenced, within six months, but a suit instituted and judgment obtained within two years; and the building is sold, after two years have expired, from its commencement, the lien creditor is not entitled to a preference over the general judgment creditors,” (2 Browne's Rep. 229.)
    “The requisites of instituting an action, or filing a claim within tbe time prescribed, is as much a matter of importance as the recording of a mortgage ; and the legislature have prescribed the mode, and time, in which notice shall be given.” (8 Serg. & Rawle, 60.)
    “ The lien shall not continue longer than two years, from the commencement of the building, unless an action for the recovery of the debt was instituted, or a claim filed within six months, after performing the work, or furnishing the materials, in the office of the prothonotary of the county.” (8 Serg. & Rawle, 59.)
    This proviso may be compared with the act of the 4th of Jlpril, 1794, which provides “ that no judgment, heretofore entered in any court of record within this commonwealth, shall continue a Hen on the real estate of the person against whom such judgment may be entered, during a longer time than five years, from the first return day of the term, of which such judgment may be so entered, unless the person who may obtain such judgment, or his legal representatives sue out a writ of scire facias, to revive the same.” (Purd. Dig. 306.) And it is decided in 3 Binn. 342, “That a judgment, not revived by scire facias within five years from its date ceases to be a lien upon real estate, as well against subsequent judgment creditors, as against subsequent purchasers.”
    “ It is decided that a scire facias, issued within the five years, although retured tarde venit, is a sufficient compliance with the law, provided an alias be issued and served in time to connect it with the issuing of the original scire facias.” (8 Serg. & Rawle, 369.)
    The reasoning and spirit of this decision, goes upon and recognizes the principle that the fact of issuing the scire facias, within the five years, is essential and must be complied with. The one act requires that a scire facias shall issue within five years, in order to continue the lien beyond that period; and the other requires that the bill shall be filed within six months, in order to continue the lien beyond two years. It is no answer, to say that a scire facias or summons was issued after the six months, but within the two years. These are mere modes of compelling payment, and of showing to what extent of property they intended to apply their lien. It is the act of filing their bill that gives them the lien. The court being satisfied on this point, it is presumed that they will have very little difficulty in disposing of the other and first exception.
    It is decided that “ an unfinished house, in the city of Philadelphia, was sold, and a mortgage given to secure the purchase money; which was immediately recorded. The vendee then went on with the building. Held, that the debts of the workmen, and persons who furnished materials for the building, after the recording of the mortgage, should be preferred to the mortgage.” (2 Serg. & Rawle, 158.)
    The original design of the house, in question, never was altered. It was intended as a dwelling-house, and as such finished without any unusual delay; and, therefore, the commencement of the building in contemplation of the legislature, must refei' to its beginning; not to its completion by painting and glazing after the purchase.
    If there be any case, in which the commencement of the building will refer to any other stage of its pi-ogress than the first corner stone, this is not that case. There has been no change from a warehouse into a dwelling-house, or vice versa. When such a case does occur, and it is attempted to create a lien against a house, for pulling down and removing the interior walls of a dwelling-house in order to convert it into a ware-house, the court will then say, whether they will construe the present statutes so as to embrace such a case,- or recommend it to legislative'interferference.
   The opinion of the court was delivered by

Tilghman, C. J.

By the act of assembly of the 17th of March, 1806, a mechanic has a lien, in preference to any other lien which originated subsequent to the commencement of the house, — but it is expressly provided, that the lien shall not continue longer than two yeai’s from the commencement of the building, unless an action for the recoveiy of the debt be instituted, or the claim filed, 1within six months after finishing the work, in the office of the protbonotary. In the present instance the plaintiffs did not file their claim within six months after the finishing of their work, so that if the law is taken according to its letter, their lien is gone. Two points have been made, — 1st. That the plaintiffs are entitled to the benefit of the law, because although the two yeai’s from the commencement of the house had expired before it was sold by virtue of the execution, yet Hopkins having employed the plaintiffs to work on the house, after he purchased it, their work is to be considered within the spirit of the law, as a new commencement from which the two years were to be counted, and on that construction the lien was in force when the house was sold under the execution. On this point I cannot agree with the counsel for the plaintiffs. The act of assembly gives continuance to the lien only for two years from the commencement of the building, and the sale to Hopkins between the commencement and the finishing, makes no difference. If the plaintiffs had done the work of painting and glazing, subsequent to the entering of the plaintiffs’ judgment, and filed their claim within six months, they would have overreached the judgment by relation to the commencement of the building. This was decided iri the case of the American Fire Insurance Company v. Pringle, 2 Serg. & Rawle, 138. It was said indeed by the court in that case, that there might be cases, in which the beginning of the two years might not be confined to the actual commencement of the building. Suppose for instance, a warehouse should be originally built and finished, and after remaining some time in this situation, it should be converted into a dwelling-house — there the new work might be considered as a new buildin'g. But there was nothing like that in the case before us. The building was originally designed for a dwelling-house, and the design carried into execution, by finishing the house in a reasonable time. There is no ground therefore, for an argument that the'two years should begin to run from any other time than the actual commencement of the building.

2d. But the plaintiffs contend, that their lien was kept in life, by the s'cire facias which they issued, and the judgment which they obtained on it, within two years from the commencement of the building. And here again I differ from them. They suppose that their lien was strengthened by the filing of their claim, — and therein lies the fallacy of their argument. For the claim not being filed within six months after performing their work, it acquired no validity from the act of filing. If the law had been complied with, by filing the claim within six month, or if an action had been commenced within six months, in either case the plaintiff would have acquired an indefinite lien. Or if they had brought suit for their debt any time after the work was done, without filing any claim, and obtained judgment and execution, and had the house sold, within two years from the' commencement of the building, they would have had a preference, because their lien would have been still in force. The act of assembly prescribes a plain path for securing a lien, and if this is not pursued, there is no cause of complaint should the lien be lost. The court should be careful how it extends their time beyond the plain words of the act of assembly; because, although it is very desirable that mechanics should be secured in the payment of their well earned wages, yet it cannot be denied, that the liens are attended with great inconvenience and hazard to bona fide purchasers. And these hazards often stand in the way of a good sale of the house after it is finished, and thus operate to the injury of those very mechanics whom it was the object of the law to protect. It is best therefore to construe the law, in such a manner, that men of plain common sense may understand it; and not involve it in difficulty, by departing too much from its letter. A point very much resembling, in principle, that which is now to be decided, came before the District Court of Philadelphia, in the case of Cornelius v. Upton, 2 Browne, 229. A person claiming as a liep creditor, had filed no claim, nor commenced any suit within six months from the time of performing the work, but instituted a suit and obtained a judgment within two years from the commencement of the building. The building and lot were sold, after the expiration of the two years, and it was held by Judge Hemphill, that the creditor who had thus proceeded, gained no preference over the general judgment creditors. I mention this, as the opinion of a very respectable judge, though no authority binding us. An attempt was made to extend the words of the act of assembly, by an equitable construction, in the case of Williams v. Fearney, in this court, (8 Serg. & Rawle, 58.) There the creditor claiming a lien, filed, no claim, but having obtained a bond and warrant of attorney to confess judgment for the amount of his claim, he entered judgment within two years from the commencement of the building. The property was afterwards sold, in consequence of a mortgage given after the commencement of the building, — but the two years from the commencement having expired, before the sale, it was held that the lien of the mechanic was gone, and the mortgagee took all the money.

I am of opinion, that the plaintiffs having neglected to file their claim, or institute an action, within six months from the time their work was performed, their lien was gone at the expiration of two years from the commencement of the building. The judgment of the Court of Common Pleas is therefore to be affirmed.

Judgment affirmed.  