
    *Iaege, &c. v. Bossieux.
    January Term, 1859.
    Richmond.
    i.Hedíanles’ Liens — Limitation oí Action.-Decree for Installments Not Dae.- Under the statute. Code, cli. 119, §2.p. 510, creating the mechanic’s lien upon the building;, the suit may he brought within six months from the time the building is finished, to enforce the lien as to the installments of the contract price due; and though some of them are not due and payable at the time the suit is commenced, the court may in its decree provide for them.
    
    
      2, Same — Assignment of — Rights of Assignee.  — The contract and lien under the statute may he assigned, and the assignee ma5r enforce the Hen in the same mode that the mechanic might do it.
    3. Contract to Build House — Approval of Referees — Con= elusiveness of — Case at Bar. — By the contract for building a house, the builder is to furnish the materials and to build the house in a workmanlike manner, and the price is to be iixed by referees chosen by the parties. Soon after the work is finished, it is valued and the price fixed: but after-wards defects become appai ent by the shrinking of the timber, showing that the work was executed in a very defective and unworkmanlike manner. The valuation does not conclude the owner of the house; but he is entitled to compensation for the defects; andin a suitby the assigneeof the builder to enforce the lien for the price for building the house, the owner will only be required to pay what the building was really worth.
    
      4. Building: Fund Company-Lien for Future Advances —Mechanic’s Lien — Priority.—A'building’fund company agrees to advance to one of its members money to build a bouse on a lot owned b37 bim, and advances a part of tbe money and takes a lien upon tbe lot and tbe buildings wbicb may be erected upon it, to secure tbe advances made and to be *made. Tbe member tben makes a contract for tbe building of a bouse on tbe lot, with a mechanic who, to raise money faster than it can be gotten from tbe company, assigns tbe contract to a person-who undertakes to advance tbe money; and tbe contract is recorded, so as to create tbe mechanic’s lien. After tbe contract is recorded, tbe company advances money from time to time, as it bad agreed to do, wbicb is paid to the assignee in part satisfaction of bis advances to the mechanic, with a knowledge on bis part, that it comes from tbe compan3r, and that tbe company claims priority of lien upon tbe property. Tbe compan3r is entitled to priority over tbe mechanic’s lien, for its advances made after tbe contract was recorded, as well as for its advances made before.
    5. Judicial Sales-Priority oí Liens.  — Before decreeing a sale of tbe bouse and lot, tbe court should determine the priorities as between tbe building fund company and tbe assignee of tbe mechanic’s lien. And it is error merely to decree a sale and direct tbe proceeds to be brought into court.
    6. Deeds of Trust — Wife Joining with Husband in— Dower — Equity of Redemption.* — The wife of tbe grantor in tbe deed of trust to secure tbe building fund compare, having joined in that deed, tbe property should be sold out aud out, and first applied to tbe payment of tbe debt due to tbe com-pan3r. But she has a contingent dower interest in tbe equity of redemption, and being a party in tbe suit, and therefore bound by tbe decree in tbe cause, tbe court should make a proper provision to compensate that interest out of tbe surplus proceeds of sale, if an3', before any part of it is paid over to tbe assignee of tbe building contract.
    7. Referees — Copy of Valuation — Waiver of Objection to. — A copy of tbe valuation of the referees, is filed with the bill, and though noticed in tbe answer, is not objected to. It is received by tbe commissioner who settles tbe accounts, as evidence, and no call is made for tbe original before bim: but there is an exception without date, endorsed upon it as being but a copy. Tbe exception either came too late, or was waived by tbe party.
    Lewis laege being the owner of a lot of ground in the city of Richmond, on which he desired to erect a small dwelling-house, at a cost of some six hundred or six hundred and fifty dollars, and holding also five shares in the Richmond building fund compan}', he applied to that company for the loan of a sum of money for the purpose of erecting such a dwelling. The company agreed to lend him the money, upon the terms prescribed in their articles and by-laws, by which the money was to be advanced from time to time as the house progressed, and the whole was to be ^secured by a deed of trust on the property. The company advanced laege one hundred and twenty dollars, and he and his wife, by a deed bearing date the 20th day of August 1852, duly recorded, conveyed the lot and buildings then or which might be put upon it, for the purpose of securing this sum and ..my farther sums which might be lent him for the purposes aforesaid.
    Having- made the arrangement with the Building fund company for getting the money, laege then contracted with William H. Martin, a carpenter, for building the house; but Martin being very much embarrassed, and fearing that his creditors might disturb him if they knew he had the contract for building the house, the name of John Warthen was substituted for his in the written agreement. This agreement, which bears date the 28th day of September 1852, provides that Warthen shall build a house •of a given description, “the work to be executed iii a workmanlike manner,” and when completed, it was to be valued by referees chosen by the parties, and the value of the building so fixed was to be the price thereof. When the roof was upon the building. laege was to pay to Warthen two hundred and fifty dollars; and when the building was completed he was to pay two hundred and fifty dollars more; and the residue was to be paid within twelve months from the date of the completion of the building, by equal monthly payments, bearing interest from that date.
    As Martin had no money, and required it to enable him to carry on the work faster than laege could get it from the Building fund company, an arrangement was made by him with Bouis J. Bossieux, who undertook to advance the money; and the contract was assigned to him by Warthen : and on the 29th of September 1852 it was admitted to record in the clerk’s office of the Hustings court of the city of Richmond, upon the acknowledgment of laege and Warthen.
    *Martin seems to have proceeded forthwith to build the house; and referees having been chosen as provided in the agreement, they on the 25th of February 1853 made out their estimate, and valued the building at eight hundred and eighty-six dollars and eighty-six cents. Of this sum, laege had paid, during the progress of the work, or in March 1852, six hundred dollars. To make these payments, it was known to the parties that he was to receive and did receive money upon loan from the Building fund company; and in addition to the sum of one hundred and twenty dollars received by him before the execution of his deed of trust, after that deed was executed and after the contract between himself and Warthen had been assigned to Bossieux and recorded, he received from the company the further sum of four hundred and sixty-one dollars; which was paid to Bossieux, with the knowledge on his part that it was obtained from the company.
    On the 12th day of September 1853 Bouis J. Bossieux instituted a suit in equity in the Circuit court of the city of Richmond, against Bewis laege and his wife, the Richmond building fund company, and the trustees in the deed to secure the company before mentioned. In his bill he sets out the contract, its assignment to him, and the record thereof, the completion of the building, the appointment of the referees, and their valuation; of which he exhibited a copy, and the payments made by laege. He says there is still due to him near three hundred dollars, which laege had failed to pay; and he insists that his contract having been recorded, he has a lien upon the property under the statute, Code, ch. 119, g 2, p. 510. He refers to the deed of trust to secure the Building fund company; and says that the company claims a prior lien upon the property; and asks for a sale of the property for the payment of his claim; and for general relief.
    *Iaege answered the bill at great length. He saj-s that he made the contract with Martin who did the work; that before making the contract he told Martin that he could not pay more than six hundred or six hundred and fifty dollars for the house, and that he would not build at all if it could not be done for that amount; and that Martin assured him it would not cost more. He declares that he never intended to give a lien upon the property by the record of the contract, and was ignorant that such would be its effect. He insists that the contract has been violated, in that the work has not been done in a workmanlike manner; that the materials used were not suitable and properly seasoned ; the door panels are split, the facings warped, the chimney piece shrunk, and various defects that could not be so well discovered when the work was valued by the referees, have since become strikingly apparent as the work has become seasoned: And he insists that he has already paid fully as much as the work is worth.
    The trustees of the Building fund company also answered, insisting upon their prior lien for the amount they had lent to laege; charging that the plaintiff and Martin knew that laege was to get the money from the company to build the house, and to give the lien to secure it; and that the plaintiff, when he received the money from the company, was informed that the company claimed a priority of lien for the motley so paid to him.
    In March 1854 the court made an order in the cause, directing a commissioner to report, first, the amount due from laege to the Building fund company at the date of the recordation of the contract with Warthen: second, whether the company had advanced to laege any sums of money to the satisfaction of said builder’s contract, after the contract was recorded; and if so, how much, and to whom such advances *were made : third, the balance due to the plaintiff: fourth, the value of the real estate in the trust deed mentioned, in its improved condition. And in June 1854 the commissioner reported, that at the date of the recordation of the building contract the Building fund company had advanced to laege one hundred and twenty dollars, of which he had repaid, in monthly installments, twenty dollars: that after the recor-dation of the contract the company had paid, or advanced, on the of December, to B. J. Bossieux and John Warthen two hundred and thirty-two dollars; and in March 1853 to the same parties two hundred and twenty-nine dollars — equal to four hundred and sixty-one dollars: and that there was due from laege to Bossieux two hundred and eighty-six dollars and eighty-six cents. On the fourth subject referred, the commissioner returned the depositions of two witnesses, and sa3's, one of them values the property at from six to seven hundred dollars, and the other from six to six hundred and fiftjr dollars. The balance reported to be due to Bossieux was based on the valuation of the referees, a copy of which was before the commissioner, and seems not then to have been excepted to; though afterwards an exception without date was endorsed upon it.
    Several witnesses were examined as to the materials and workmanship of the building; the substance of which is stated in the opinion of Judge Bee. The allegations in the answer on that point, seem to be fulljr sustained.
    The cause came on to be further heard on the 27th of November 1855, when, there having been no exception to the commissioner’s report, it was confirmed; and it was decreed, that unless within ninety days laege or some one for him paid to the plaintiff the sum of two hundred and eighty-six dollars and eighty-six cents, with interest from the 25th of February *1853 until paid, and his costs, a commissioner should proceed to sell the house and lot, in the mode and on the terms stated in the decree, and deposit the proceeds in the Bank of Virginia to the credit of the cause, and report his proceedings to the court. From this decree laege and the Richmond building fund company applied for and obtained an appeal to this court.
    B. B. Minor, for the appellants, insisted:
    1st. That the suit was instituted before the right of action had arisen. The paj--ments over the sums provided to be paid during the progress of the work and on its completion, were to be paid in twelve months from the time the building was finished, in equal monthly installments. The whole of this residue was not due until the 25th of February 1854, and when this suit was instituted, had not become payable. And the statute, Code, ch. 119, \ 2, p. 510, provides, that the builder’s lien shall not continue more than six months from the completion of the building, unless a suit in equity to enforce the lien shall have been commenced within the said six months. He referred to Kinney v. Hudnut, 2 Scamm. R. 472; Jones v. Alexander, 10 Smedes & Marsh. R. 627; Thaxter v. Williams, 14 Pick. R. 9; Heck v. Skener, 4 Serg. & Rawle R. 249; Delahay v. Clement, 3 Scamm. R. 201; Pryor v. White, 16 B. Monr. R. 605; Bartlett v. Kingan, 19 Penn. R. 341; Patrick v. Ballentine, 22 Missouri R. 143; Hoover v. Wheeler, 23 Miss. R. 314 ; McCallan v. Smith, 11 Cush. R. 238. |
    2d. That the building contract was not recorded with the intention to create a lien on the property, nor with the knowledge on the part of laege that it would have that effect; and therefore no lien was created by it. Hutchison & wife v. Rust, 2 Gratt. 394; Alexander & Co. v. Newton, Id. 266; Blessing’s adm’r v. *Beatty, 1 Rob. R. 287; Pullen v. Mullen & wife, 12 Beigh 434, 440; 2 Rob. old Pr. 214.
    3d. That the balance reported to be due to Bossieux is erroneous: First, because there was no legal proof of the valuation of the referees, there being only what purported to be a copy of that valuation, and that excepted to. But second, because the proofs are conclusive to show that the house was not built in a workmanlike manner, but that both the materials and the workmanship were very inferior, and were full of defects, which could not be seen or discovered when the valuation -was made soon after the completion of the work, and in the winter. That laege was therefore not concluded by the valuation of the referees, but had a right to an abatement of the estimated price, and should be charged only what the house was really worth. He referred to Heck v. Skener, 4 Serg. & Rawle R. 249; Chitty Contr. 450-51, 574-75; Caw-thorn v. Courtnej', 6 Gratt. 381; Warren v. Harris, 2 Gilm. R. 307.
    4th. That the Building fund company were entitled to a prior lien for the whole amount of their advances: that the parties had full knowledge that the contract for the building was to be carried out on Iaege’s part, and could only be carried out by him, by means of the money to be advanced by the company on the security of the house and lot; and Bossieux himself received the money from the company, with the full knowledge that they claimed to have the prior lien for all their advances, and without then disputing their claim. He referred to 1 Story’s Equ. Jur. <j 401, 417 ; 2 Id. $ 1237, and note; Cox v. Romine, 9 Gratt. 27.
    5th. That the building- contract was not assignable so as to give the assignee the. mechanic’s lien. The statute gives the lien to the person who has done the work, but not to his assignee. Sess. Acts 1842-3, ; p. 53; Code, ch. 119, g 2, p. 510; Bot-tomly v. Grace *Church, 2 Calif. R. 90; Greene v. Ely, 2 Green’s (Iowa) R. 508; Hilliard v. Allen, 4 Cush. R. 532; Bogan v. Dunlap, 3 Scamm. R. 189. And there is no lien for money advanced for erecting the building. Godefroj’- v. Caldwell, 2 Calif. R. 489; Steam Boat D. H. While v. Bevy, 10 Ark. R. 411 ; Bawson & ais. v. Higgins, 1 Mich. R. 225; Shotwell v. Kilgore, 26 Miss. R. 125; Holmes v. Shands, Id. 639; Edgar v. Salisbury, 17 Missouri R. 271.
    6th. The sale df the propert3r is decreed, without any provision for the widow’s right of dower in the equity of redemption, alter satisfying the lien of the Building fund compans', in which she. joined. That equity of redemption includes the buildings put upon the lot. Shaeffer v. Weed, 3 Gilna. R. Sil; English v. Foote, 8 Smedes & Marsh. S. 4+4 ; Selph v. Howland, 23 Miss. R. 264; Thirby v. Tead, 13 Mete. R. 149. And the sale is also decreed without first adjusting the proprieties of the liens; which this court has held to be error. Cole’s adm’r v. McRae, 6 Rand. 644; Buchanan v. Clark, 10 Gratt. 16.
    Morson, for the appellee:
    Upon the first point made by the appellants’ counsel, to show the right' of an assignee to sue in equity to enforce a lien, referred to Hanna v. Wilson, 3 Gratt. 243; Winn v. Bowles, 6 Muni. 23; 2 Story’s Equ. Jar. I 1040, 1250. And to show that the assignee may sue before all the installments are due, he referred to 3 Rob. Pr. 361, 362; Paul v. Bod, 2 Man. Gr. & Scott 800; Mussen v. Price, 4 East’s R. 147; 3 Parsons’ Cont. 486, note k; Hanna v. Mills, 21 Wend. R. 90; 1 Story’s Equ. Jur. $ 64 k, 67, 68, 457; 2 Id. 'i 717 a, 718. And he insisted that the provision in the statute referred to, was only intended to prevent delay in enforcing the Hen.
    2d. That though laege swears he did not intend to give a lien by the record of the building contract, *thcre is no proof of the fact; but the contract was recorded on his acknowledgment; and Bos-sieux refused to lend the money unless the contract was recorded.
    3d. He insisted, that the value of the building was ascertained in the mode prescribed in the contract, and there was no suggestion that the referees had not acted honestly in making their valuation; and the parties were concluded by that valuation. Kidwell v. The Baltimore & Ohio R. R. Co., 11 Gratt. 676. That the exception to the copy of the valuation was without date, and was obviously taken after the report of the commissioner had been returned. That copy was filed with the bill as an exhibit; and though referred to by laege in his answer, was not objected to.
    4th. The Building fund companj- is not postponed absolutely to Bossieux. The amount due the company when the contract was recorded is held to have priority. According to the general rule, Bossieux is next entitled, and then the company for the money advanced after the contract was recorded. But the decree does not postpone the company to this extent, but simply directs the sale, and that the money lie deposited in bank; and the question of priority •may be hereafter adjusted. And this is the usual practice; it not being common to settle the priorities in the decree directing the sale.
    5th. There is nothing in the cases cited on the other side to sustain the proposition that the assignee of the contract is not entitled to the lien ; nor is there any thing in the statute to authorize the proposition. It would be most injurious to the mechanic if it were so, as it would lessen the value of the lien to him, by precluding its use in raising money to enable him to execute the work.
    6th. The deed to secure the Building fund company, convej'ed the dower interest of Mrs. laege; and '"the whole property was therefore properly decreed to be sold. She had but a conting-ent interest in the equity of redemption, and was only entitled to have her interest secured out of the balance of the purchase money ; and as she is a party in the suit, that could have been and can yet be done.
    
      
      Mechanics’ Liens — Decree for Installments Not Due.—In Trustees Franklin St. Church v. Davis, 85 Va. 197, 7 S. E. Rep. 245, suit was brought to eniorce a mechanic’s lien before the installments which were sought to be collected became due, and the court held that the suit was prematurely brought, distinguishing it from the principal case which holds in its first headnote that where suit is brought to enforce a mechanic’s lien after the iirst installment is due decrees for the subsequent installments, as they .subsequently fall due, may be rendered in the same suit.
    
    
      
      Code, ch. 119, § 2, p. 510. “If a person owning or having an interest in land, in a city or town, shall by a writing signed by him, contract with another to pay him money for erecting or repairing any building, or the appurtenances of any building on such land, there shall be a lien for such money on the whole interest of the said person in such land , from the time that the said writing is duly admitted to record in the county or corporation wherein the said land lies. But the said lien shall not be in force more than six months from the time when the money, or the last installment of the money to he paid nnder such contract, shall become paya ble, unless a suit in equity to enforce the lien shall have been commenced within the said six months. 11 in such suit the lien be established, the court shall order a sale of such interest in the land, to satisfy the money which ought to be paid under such contract.”
    
    
      
      Same — Assignment of — Rights of Assignee. — The principal case is authority for the proposition that where a perfected mechanic’s lien under the statute is assigned, the assignee may enforce the lien in the same mode that the mechanic might do it. and in Bristol Iron & Steel Co. v. Thomas, 93 Va 403, S. E. Rep. 110, citing the principal case, the court goes further and holds that the assignee may perfect the inchoate lien which existed for the benefit of his assignor.
    
    
      
       Contract to Build House — Approval of Referees--Coneiusiveness of.--In Carroll County v. Collier, 22 Gratt. 311, and note, the plaintiff contracted to build a jail for the said county. The work shortly after its completion was examined bv commissioners of the court, who reported that the building had been completed according to the contract. This report was entered of record. When sued for the amount promised to be paid for the work, the defendant put in a special plea alleging that the work had been defectively constructed and the plaintiff joined issue on the plea. The defendant Introduced a witness to sustain the defence and the plaintiff objected and offered the order as an estoppel. The court held, citing the principal case, that the plaintiff having taken issue on the plea the order could not operate as an estoppel when offered in evidence. See, in accord. Hayes v. Va. Mut., etc., Assn., 76 Va. 226. But in Despard v. County of Pleasants, 23 W. Va. 324. whose facts are similar to the case above and where Issue was joined on the plea of non-assumpsit, the court held: “In this action, the defendant filed specifications oí sets-off and payments, but gave no notice of any claim for damages on account of any defect in the repairs. Tt did not assert or offer to prove that there was any imposition, fraud, concealment or mistake in the accept-anee of tbe work by tbe court. If it bad offered such proof in connection with tbe testimony excluded by tbe court, I am inclined to think it would have been admissible under tbe plea of non-assumpsit and that said order of acceptance would not have operated as an estoppel even if so formally pleaded. Iaege v. Bossieux, 15 Gratt. 83, 99: Carroll County v. Collier, 22 Gratt. 302. But, having failed to assert or offer to show that there was an3T imposition or fraud on tbe part of tbe plaintiff, or mistake upon tbe part of tbe county court in accepting said repairs, I do not think tbe circuit court erred in excluding tbe testimon3r offered b3’ the defendant to prove that the work bad not been done according to tbe specifications set forth in tbe contract with tbe plaintiff."
    
    
      
       Judicial Sales — Priority of Liens. — Tbe 5th headnote of tbe principal case bolds in substance that it is error to decree tbe sale of lands before ascertaining tbe priority of liens thereon. For tbe above proposition tbe principal case is cited in tbe following cases: Horton v. Bond, 28 Gratt. 815, andnote; Crawford v. Weller, 23 Gratt. 835, and note: Anderson v. Nagle, 12 W. Va. 113: Washington, A. & G. R. Co. v. Alexandria & W. R. Co., 19 Gratt. 617, and note; Lipscombe v. Rogers, 20 Gratt. 658, and note: Tracey v. Shumate, 22 W. Va. 500.
      See monographic note on “Judicial Sales" appended to Walker v. Page, 21 Gratt. 636.
      But in Pairo v. Bethell, 75 Va. 831, it is said: “The court might, perhaps, in tbe exercise of a sound dis-. cretion, direct an issue or" issues under circumstances wbicb would warrant such direction in a regular chancery suit; and so, if tbe case required it, we see no good reason why there might not be a reference to a commissioner to make inquiries and take and state accounts. Such reference might be necessary in many cases involving conflict of liens, disputed titles and like matters; such, for instance, as tbe case of Iaege v. Bossieux, 15 Gratt. 88. But there was no necessity for tbe reference asked for in the present case, as tbe questions litigated were simple and easy of solution by tbe judge, as tbe sequel showed, without tbe aid of a commissioner, nor was there any necessity for an issue or issues to be tried by a jur3T.”
    
    
      
       Deeds of Trust — Wife Joining with Husband in— Dower — Equity of Redemption. — For tbe proposition that where tbe wife of tbe grantor in a deed of trust, to secure a building fund company, joined in that deed, tbe property should be sold out and out, and first applied to tbe debt due tbe compan3r, but since tbe wife has a contingent dower interest in tbe equit3' of redemption, tbe court should make a proper provision to compensate that interest out of tbe proceeds, tbe principal case is quoted with approval in Holden v. Boggess, 20 W. Va. 79, 85, 86, but this case criticises tbe principal case as to tbe way in wbicb tbe d03ver interest should be secured to tbe wife: bolding that if tbe wife survives tbe husband and tbe dower interest becomes consummate, tbe same in a.suit in equity by her is a charge upon tbe land in tbe bands of tbe purchaser. See principal ’case reported in 76 Am. Dec. 389, and note. Sec monographic note on “Deeds of Trust.”
      Mechanics’ Liens. — On the subject of Mechanics’ Liens, see discussion in 2 Va. Law Reg. 489, where tbe principal caséis cited; also, U. S. Blowpipe Co. v. Spencer, 40 W. Va. 705, 21 S. E. Rep. 769.
    
   EEE, J.

The jurisdiction of this court in this case is, I think, clear and unquestionable. Assuming that the matter in controversy is merely pecuniary, it is not confined to the amount claimed by the ap-pellee but embraces also the amounts claimed by the Building fund company and for which as they allege thej’’ are entitled to priority of payment out of the proceeds of the subject. These alone exceed the sum necessary to give the jurisdiction.

There is as little doubt, I think, of the jurisdiction of the court of equity in the matter of the bill. Its jurisdiction is denied by the counsel for the appellant upon his construction of our act creating the “mechanic’s lien,” Code, ch. 119, | 2, p. 310; and if his construction were correct, there would be grave doubt of the right of a party claiming as assignee of such a contract. as that which is the foundation of the appellee’s demand, to come into equity to obtain payment of such of the installments as had become due merely upon the ground that he was assignee. But I do not think the construction contended for is correct. The act first declares that there shall be a Hen for the money agreed to be paid upon a contract for erecting or repairing any building, &c., from the time that the same is duly admitted to record, and then provides that “the said lien shall not be in force more than six months from the time when the money or the last installment of the money, to be paid under such contract, shall become payable, unless a suit in equity to enforce the lien shall have been commenced within *the said six months. ” The object of this provision was to prescribe a limitation to suits to enforce such a lien by specifying a period after which they might not be brought but. not one before which they might not be commenced. It intended to give the mechanic the right to assert the Hen for all the installments whenever due (where the contract price was paj-able in installments) provided he commenced his suit before the expiration of the six months after the last installment became due, but not to prevent him from proceeding for previous installments before the last became payable. His right to sue for these depends on general principles and is not restricted by the act; and no one has ever questioned that a party who has a debt due by bond payable in installments and secured by a lien on real estate may maintain covenant, or file his bill to enforce his lien as soon as any one installment becomes payable, whatever may be the doubt as to the right to maintain debt until all of the installments shall have become due. And where such a bill has been filed another installment shall become due pending the suit, the uniform practice, never questioned so far as X know, has been to decree payment ■of all the installments that shall have fallen ■due up to the time of the decree, and if there be any to become due thereafter to provide that the party may come in on the foot df the decree to obtain satisfaction of the same out of the surplus proceeds, if any there should prove to be. To this practice I can see no well founded objection. It would be useless and occasion unnecessary costs and delay to require the party to commence a new suit or even file a supplemental bill whenever another installment shall fall due; and the defendant in making his de-fence as to the first installment may if he please make it to any or all of the others or ma}7 obtain leave to do so in proper time afterwards.

*1 have examined the cases cited by the counsel on this point but have seen in them no reason to doubt the correctness of my construction of the statute. The cases apparently most resembling this case are those of Kinney v. Hudnut, 2 Scamm. R. 472; Pryor v. White, 16 B. Mon. R. 605; Bartlett v. Kingan, 7 Harris Penn. R. 341; McClallan v. Smith, 11 Cush. R. 238; and Jones v. Alexander, 10 Smedes & Marsh. R. 627. But they were upon statutes differing in some respects from ours, and they do not touch the particular point made here. The case of Kinney v. Hudnut merely decides that under the statute of Illinois, there can be no cause of action until the contract is completed and payment is due. In that case there was no special contract as to the time when the work was to be paid for. In Bartlett v. Kingan, the claim was for work done and bricks furnished on an entire contract for the erection of a house, and it was held that under the Pennsylvania statute, the six months’ limitation commenced to run from the completion of the contract, and that the party was in time if his claim was filed within that period after the last quantity of bricks was furnished and laid. Here the demand was for an entire sum due in whole upon the completion of the contract. In Pryor v. White, it appears that under the . Kentucky statute the lien is to be enforced by bill filed within one year from the completion of the work, and that the party.in that case had taken notes for the work some of which would not fall due until after the year: and it was held that as he had thus by his voluntary act placed himself in a position which rendered him unable to bring a suit to enforce the lien as to them within the year, he was to be regarded as having virtually waived it. Jones v. Alexander was a case under the Mississippi statute which required the suit to be brought within twelve months from the time the money was to be paid in order to secure the *lien. The plaintiff had furnished lumber to the defendant for a house in 1844, the proper time of payment for which was the 1st of January 1845; and in May 1845 he had taken the defendant’s note for the amount payable one day after date, but the petition- to enforce the lien was not filed until April 1846. It was held that the party could not deviate from the original contract and extend the time when according to it the lien would attach, and as the petition had not been filed within twelve month from the time when payment was to be made, it could not be maintained. In McClallan v. Smith, which was a case under the Massachusetts statute, the contract was to do the work during the season ensuring its date, which was the 30th of May 1845; the contractor did part of the work in 1845 but did not complete it until May 1846, and the property having been conveyed to others, he sought to enforce his lien against them. It was held that although he would have been entitled to compensation for the work he did during the season of 1845, because his failure to complete the building was occasioned not by his default but by that of the owner in furnishing materials, and to have his lien enforced to that extent if he had commenced his suit in due time; j7et as he had not filed his petition within six months from the time when the amount due for the work done in 1845 would have been payable according to an equitable adjustment under the contract, his lien was lost and the land discharged of the incumbrance: the court being of opinion that the work done after the season in 1845 ivas to be regarded as done under a subsequent parol agreement, which did not continue the former lien nor create a new one.

Thus it shall be perceived, as I think, that' these cases all differ in their distinctive features from our case and give but little aid in settling the true construction of our act. Ñor have I seen any sufficient *reason for applying a different rule to the lien which it creates from that which obtains in other cases of lien for money payable in installments. I think the party could come into equity to enforce the lien as soon as either installment became due, and that when he did so, the court could properly make provision for the others. In this view it is unnecessary to enter into the doctrine of assignments for the purpose of determining how far without such Hen, the appellee could have maintained himself in that court upon the footing of his assignment alone.

But the counsel for the appellants goes still further and insists that there never was a lien at all because the contract was not acknowledged by Iaege and admitted to record for the purpose of creating a lien, nor did he know that such would be the effect. Or if it must be held that there is a lien, that it is not assignable and consequently the appellee has no footing in court to enforce it for his benefit.

Nothing is said in the act about the intention with which the contract is admitted to record, nor is any certificate required of the purpose for which it may be acknowledged or recorded. The appellee, it appears, who was to advance the money refused to do so unless the contract was recorded, and to overcome this difficulty, laege went to the clerk’s office and acknowledged it for that purpose. No fraud or imposition is alleged to have been practiced upon him, and his ignorance of the legal consequences of recording the contract cannot prevent the lien from having effect. Otherwise it would be a fraud upon the ajipellee who has advanced his money upon the faith of the rights thereby acquired. I think it clear therefore that the party must be deemed when he acknowledged the contract and assented to its being recorded, to have known that it would create a lien or at least that *he was content to abide by all the legal effects and legitimate consequences of its being so recorded.

Nor do I think that the position taken by the counsel that such a lien is not assignable can be maintained. By the act of 1819 it is declared that assignments of all bonds, bills and promissory notes and other writings obligatory whatsoever, shall be valid; and that an assignee of any such, may thereupon maintain any action in his own name which the original obligee or payee might have brought. 1 Rev. Code 1819, p. 484, § 5. In the Code of 1849, the declaration that such assignments shall be valid is omitted, and it is simply provided that the assignee of any bond, note, or writing not negotiable, may maintain thereupon any action in his own name which the original obligee or payee might have brought; the revisors, I presume, supposing that to give the action to the assignee in his own name sufficiently affirmed the validity of the assignment without any express declaration to that effect. Code, ch. 144, $ 14, p. S83. Now I see no reason why the assignee in this case could not maintain an action at law in his own name upon this contract. It seems to me to be fully embraced by the terms of description both in the Code of 1819 and that of 1849. But if this may be questioned, no reason is shown why it may not be regarded as assignable for value in equity. It is said and authorities have been cited to show, that such a statute is to be construed strictly, and it is contended that it is intended exclusively for the benefit of the builder and material-man. No case has been cited affirming that a contract under such a statute cannot be assigned. There is nothing in public policy or in the language or the policy of our act to forbid it; and if the statute be exclusively for the benefit of the builder and material-man it would certainly impair the value of his Hen to declare *it non-assignable. It might prejudice him by depriving him of credit which he might otherwise obtain to prosecute his undertaking, and thus also operate a disadvantage to the owner. Whilst the latter can in no respect be injured by the assignment, because the assignee takes the obligation subject to the same equity to which it was subject in the hands of the obligee and must allow all just discounts not only against himself but against the assignor before notice of the assignment.

[ I can perceive no reason for distinguishing between contracts of this character and other choses in action ex contractu in respect of the right to assign them. And it cannot be doubted that when the assignee takes the contract, he acquires with it the lien as a necessary incident.

I proceed next to consider the complaint made of the amount for which the decree was rendered.

By the contract the work about the house was to be executed in a workmanlike manner, whilst the proofs in the cause tend strongly to show that it was in fact executed in a very defective and unworkmanlike manner. It is proven that the doors were very much cracked (one of the witnesses says “cracked to pieces”) and that thej' were too small from shrinking, were made of green or wet timber and that numerous holes were found in them; that the staircase had given way and the steps had sunk from a half to three-fourths of an inch below the skirting; that the wash-boards had left the floors or the floors had sunk from half an inch to an inch; that the mantles were badly executed and much shrunken; that the plastering was not well done, that the weather-boarding was very much split and shrunken for want of a sufficient lap and that the piazza in the rear was badly and improperly constructed. All the witnesses examined upon the subject agreed that the materials must have been green *or unseasoned and that the work was not done in a workmanlike manner but was very defective; and they all think it was worth much less than was to be paid for it if executed in the manner required by the contract. It is true it was provided that the work when completed was to be valued by referees and the price was to be fixed by their valuation. But such a valuation would of necessity be based upon the condition in which the work appeared at the time it should be made, and it coukl not have been intended to deprive the party of the right to compensation for material defects in the work that were not discoverable at the time of the valuation but only became apparent afterwards. And as numerous and marked defects were subsequently disclosed the award of the referees as to the value of the work in its apparent condition at the time should not be held conclusive. It appears that the valuation was made by the referees immediately after the completion of the house in February 1853; the work was then just finished, freshly painted and plastered; every thing appeared right except perhaps the defective manner of the construction of the piazza in the rear, and it was not until after the materials used had become seasoned during the ensuing summer and fall that their defective character was exposed in the numerous flaws and defects which became strikingly apparent in various parts of the building, and thus invited attention as well to the materials themselves as to the manner in which they had been wrought.

If the price of the work had been fixed in the contract and the party had paid it im mediately on its completion, or if he had been sued and judgment recovered for the amount before the faulty and defective workmanship had discovered itself, it will scarcely be said that he would have been thereby deprived of the benefit of his contract for work done in a workmanlike *manner, and of compensation for material defects which were subsequently disclosed. Nor can I think that the measurement and valuation made by the referees should under the circumstances of this case, have any greater effect.

The case of Kidwell v. The Balt. & Ohio R. R. Co., 11 Gratt. 676, has been cited by the counsel for the appellee upon this point; but it will be found X think upon examination to decide nothing incompatible with the conclusion I have arrived at in this Gase. That was a bill filed to obtain compensation for extra work and deficiencies in estimates of the value of work done, upon certain contracts for the construction of .bridges on the line of the company’s road. These contracts provided for monthly estimates to be made of the quantity, character and value of the work by an engineer designated, and when the work should be fully completed and accepted by the engineer, for a final estimate of the same, when the balance appearing to be due was to be paid to the contractor upon his executing, a re-léase of all demands against the company. There was a further provision that these estimates should be conclusive between the parties unless altered by the principal engineer to whom power was reserved to review the same .and make alterations if he should choose to .exercise it. The complaint on this branch of the case was that the estimates had all been made upon an improper and erroneous construction of the contracts, to the great prejudice of the contractor, and that he should not be bound by th.em. on that account and also because of fraud and mistake imputed to the officers in effecting the contracts and making the estimates. The court held that neither fraud nor a mistake was made out in proof, and that in the absence of both, the final estimate of the engineer was conclusive between the parties. It was also held that ■ , whatever might be the true construction *of the contracts yet as the estimates had been made upon a particular construction of which the contractor was fully informed at the time and had received the monthly estimates based upon it without objection, he must be held to have acquiesced in that construction and to be bound by it; and that if he might have refused to abide by the final estimate, yet having made no objection to the engineer’s proceeding to make it, and having attended upon him for that purpose and submitted his charges for the work done, he was concluded by the engineer’s action. In this case the very matters sought to be controverted had been formally and directly submitted to and adjudicated by the referee, all the elements which should enter into his estimate were perfectly known at the time and the contractor by his acts and declarations, had acquiesced in the principles upon which he had attained his results. I can perceive nothing in this decision which touches the particular question in the case in judgment.

It is contended on behalf of the Building-fund company that they were entitled to priority of payment out of the proceeds of the sale of the property, both as to the one hundred and twenty dollars advanced to Iaege before the building contract was recorded, and the four hundred and sixty-one dollars advanced and paid to the appellee afterwards; and on behalf of both the appellants it is insisted that the Circuit court should have so adjudicated before it directed a sale of the property.

The counsel for the appellee does not contest the priority claimed for the one hundred and twenty dollars, and he contends' that upon the face of the commissioner’s report and the decree of which it is the basis, this is impliedly conceded and should be regarded as sufficiently recognized: but he does contest the priority claimed as to the four hundred and sixty-one dollars paid after the building contract was recorded, ";iand he argues that as the monejr arising from that sale was not disposed of by the decree but directed to be deposited in bank to the credit of the cause, the court could afterwards decide upon the priorities .and thus no one would be prejudiced.-

It is a well settled rule that where there are conflicting claims to priority of payment out of the proceeds of land about to be sold to satisfy the liens upon it, the court in order to prevent the danger of sacrificing the property by discouraging the creditors from bidding as they probably might if their right to satisfaction of their debts and the order in which they were to be paid out of the property, were previously ascertained, should declare the order of payment before it decrees the sale to be made. Cole’s adm’r v. McRae, 6 Rand. 644; Buchanan v. Clark, &c., 10 Gratt. 164. It is therefore not sufficient that the court should direct the fund ,to be paid into court and should declare the priorities afterwards. The purpose for which it is done requires that it should precede the sale.

I do not see any thing in the report of the commissioner or the decree of the court confirming it which amounts to a declaration or recognition of the priority of the Building fund company even as to the one hundred and twenty dollars. The report simply states the facts, and the decree, after confirming the report, directs that if the balance stated to be due the appellee be not paid within ninety days with interest and costs, the property should be sold and the proceeds after paying the costs and expenses of the sale, paid into bank to the credit of the cause. Nothing- is said in it in relation to either claim of the Building fund company, and the failure to adjudicate as to the order of payment is, I think, a material error in the decree.

As to the Building fund company’s right to priority as to the one hundred and twenty dollars, no objection ‘"is made, nor can its right to such priority as to the four hundred, and sixty-one dollars, be successfully contested. When the company advanced the one hundred and twenty dollars to Iaege for and on account of the redemption of a share held by him in the stock of the company, they- took from him a deed of trust upon the properly to secure the payment of that stun as well as of any other sum or sums they might thereafter advance on account of the redemption of other shares. This arrangement was fully within the terms of the charter and the by-laws of the company, and was the mode in which the main object of the association was carried into effect, and it was well known to Martin, Warthen and the appellee at the time the contract for building the house, was executed and when the same was assigned to the appellee. The deed of trust was duly admitted to record before the contract for building was entered into, and when it was made and assigned to the ap-pellee. it was perfectly well known to all these parties that the principal part of the funds to be paid for the work was to come from the Building fund company and to be advanced by it on the security of the deed of trust which they had taken; and accordingly they' required Iaege by the contract to give good security for the excess of the cost of the building above the five hundred dollars expected from the company". And when the money was paid to the apjseliee, lie knew that it was paid by the company on the security of the deed of trust, and with the understanding on 1heir part that they were to be indemnified in preference to any' other claimant, and it was accepted and received by him in payment for materials furnished and work done upon the very" property without objection and without protest as to the justness of the expectation with which it was paid. To permit the appellee now to repudiate his '"‘recognition of the priority of the company’s claim would operate a virtual fraud upon them and would be most unjust and inequitable.

I Ihiuk therefore the Building fund company is entitled to priority in payment of She proceeds of the |>roperiy as well of the four hundred and sixty-one dollars advanced in redemption of stock as of the one hundred and twenty dollars advanced in that way at the time the deed of trust was executed.

There are two other points which perhaps should be briefly" noticed.

An exception was taken to the paper offered as evidence of the measurement and valuation of the work by the referees' because it purported to be a copy? and not the original. This exception is without date au.l it does not appear when it was in fact taken. But the paper was filed as an exhi bit with the bill and although the answers are very full and elaborate no objection is taken to the paper on that account nor is any call made in them for the original. The paper was also received by. the commissioner as evidence, there was no call made for the production of the original before him nor does he report that any objection was made to the paper because it was but a copy. The exception therefore either came too late or must be regarded as having been waived by the parties, and it was properly disregarded by the Circuit court.

The remaining point relates to the contingent dower interest of the wife of the appellant Iaege in the property. It is said that this was not affected by the mechanic’s lien, and that the court therefore should not have sold the entire estate, but only the interest of Iaege. That the mechanic’s lien does not override the dower interest of the wife is very clear, and if any authority to the point were needed, it would be found in Shaeffer v. Weed, 3 Gilm. 511. But Mrs. Iaege had united with her husband in the deed of trust for the ‘"benefit of the Building fund company, and if a sale takes place it must be to raise the amount due the company as well as lha l due to the appellee. It would be proper therefore that the property should be sold out and out, but as the wife has a contingent dower interest in the equity of redemption and being a party to the cause, is to be bound by" the decree, the court should make a proper provision to compensate that interest out of the surplus proceeds of sale, if any, after satisfying the amounts due the Building fund company before any j>art of the same shall be paid over to the appellee.

I am of opinion to reverse the decree and remand the cause for further proceedings.

The other judges concurred in the opinion of Bee, J.

The decree was as follows:

The court is of opinion that the Circuit court did not err in maintaining the jurisdiction of the court of equity? to grant the relief pray?ed for by the bill, nor in disregarding the exception to the copy? of the measurement and valuation of the referees filed as an exhibit with the bill, nor in holding the appellee entitled to a decree for all of the installments of the yjrice of the work although part thereof only became due pending the cause. But the court is of opinion that before decreeing a sale of the properly, the Circuit court should have directed an enquiry by" a commissioner into the alleged defects in the work done in the execution of said contract which were disclosed and became apparent after the valuation made by the referees, and should have ascertained what would be a just compensation to the appellant Iaege for such defects, and should have caused the same when so ascertained to be accounted for out of the balance due the appellee if sufficient to satisfy the same, before any amount should be decreed to him on said contract.

‘"And the court is further of opinion that before decreeing a sale of the property, the Circuit court should have adjudicated the priority of pay?ment Out of the proceeds thereof as between the appellee and the Building fund company, and should have declared the said company entitled to such priorit3T both as to the one hundred dollars balance of what was paid before, as well as to the four hundred and sixty-one dollars paid after the said building contract was admitted to record.

And the court is further of opinion that it was proper the said property should have been decreed to be sold out and out, but that inasmuch as the wife of the said laege is entitled to a dower interest in the equity of redemption after satisfying the purposes of the deed of trust, and as she is a party to the cause the court should make a suitable provision for the preservation of such dower interest out of the surplus proceeds of sale after satisfying the demands of the Building fund company, before any part thereof should be paid over to the appellee.

Wherefore the court is of opinion that there is error in said decree.

Therefore reversed with costs and remanded with instructions further to proceed in the same according to the principles hereinbefore declared.

Decree reversed.  