
    Gorgas surviving partner of Warner against Douglas.
    Saturday, April 28.
    icsMienlaw’1* 18061'do®?”* not authorise a erection of several houses owned by different persons, though the houses join each other.
    Nor is the case altered by proving on the trial what materials were furnished for each house. Piling a joint claim is a void act.
    In Error.
    ON a writ of error to the District'Court for the city and county °f Philadelphia, this appeared to be a scire facias issued to June Term, 1819, upon a claim filed on the 2d June, for 1427 dollars 28 cents, under the Mechanics’lien timber furnished for the building of three brick bouses adjoining each other, in the city of Philadelphia, of which Francis Douglas was the reputed owner.
    On the part of the defendant, it appeared that the plaintiff had brought suit against the defendant for a balance of an account, in which the charge for the lumber for which his claim was filed, was included, and obtained a judgment on the 25th August, 1815, on which he issued a peri facias, and levied it on the middle of the three houses above mentioned. A venditioni exponas afterwards issued, to which the sheriff returned, that the house remained unsold for want of purchasers. The eastern house was sold on the 15th November, 1813, by its owner, John Mullowny, to John Pringle, who gave Mulloxuny his bond and mortgage for part of the purchase money. These were afterwards assigned to the American Fire Insurance Company, who entered judgment on the bond in the Supreme Court, under which the house was sold for 3600 dollars. After paying the debt due to the Insurance Company, there remained a balance of 608 dollars 72 cents, which was distributed according to the report of an auditor appointed by the Court, among the lien creditors, who had claims for materials furnished after the sale to Pringle, of whom the plaintiff was one. The western house, which also belonged to Mullowny, was sold by him to FI. B. Pennock, who gave a bond and mortgage, which were assigned to the American Fire Insurance Company, who instituted proceedings on the mortgage, under which the house was sold, and the money arising from the sale appropriated towards the satisfaction of the mortgage. The centre house was afterwards sold under a mortgage given by the defendant to John Livezley. The money arising from the sale was paid into Court, and an auditor appointed, who made a report of the incumbrances upon the property. It was afterwards agreed between Livezley and the plaintiff, that the latter should take out of Court, without prejudice to his lien, 672 dollars 27 cents, .the amount apportioned to the centre house, and that 120 dollars, the amount apportioned to the eastern, and 150 dollars apportioned to the western house, together with interest on the whole amount of the claim, 942 dollars 27 cents, should remain to abide the order of the Court.
    
      Upon these facts, the Court charged the jury to the followjng effect.
    . . Chauge.—u The first question is, whether a general hen, or a j¡en fj[ec[ generally against three houses, owned by different persons, is good against all and each, for the materials furnished for the three houses ; in other words, is each of the houses liable, on such lien, for the materials furnished for the others ?
    “ The act of 1806, provides: (Here his honour read the act.) The intention of the Legislature was to secure the material-men and mechanics, for the materials found, and the work done in any building, but certainly not to make one house liable for the materials or work furnished for another, or one builder liable for the debts of another. Suppose a carpenter made the doors of one, and did all the carpenter’s work of three other houses owned by different persons, shall he, because he worked on all the houses, have a lien on the house for which he made the doors only, for the work he did on the others, and file his lien against all? No one will contend that he would have such a lien. Then why should the material men, who furnish some lumber for one house and some for another, have a lien against all ? It could never have been the intention of the Legislature ; and such a construction would give rise to numerous frauds. It has been said, that when several houses are built at the same time^ and the lumber, is furnished from the same yard, the lumber merchant cannot know for which house it is furnished. Why can he not as well know and designate the house for which the lumber is furnished, if the houses are adjoining, as he could if the houses were in different parts of the city ?
    “ If three persons agree to build houses adjoining, and employ the same carpenter, and the lumber is furnished from the same yard, is each building to be liable for the materials furnished for the other, on a general lien filed against the three houses, because they employ the same carpenter, and deal with the same lumber merchant ? If so, one house may have different or less costly materials, and less in quantity, yet, upon the principle contended for, he and his house are to be liable for the others. Again: The owner of one may pay for all the lumber furnished for his house, yet he is, upon this general lien, to be held liable for the others. We cannot make the property of one man liable for the debts of. another, without his assent. The act of assembly cannot admit of such construction, and cannot be misunderstood. The lien is given on the house or building, for the materials or furnished or done on the building.
    “ It has been said, that the lien was entered against Francis Douglas, as the owner or reputed owner ; and if he had been the owner, there would have been no difficulty. That is not quite so clear; but it is not necessary to decide the point now. He was not the owner of the three houses, but of one house, nor does it appear that he was the reputed owner of the three houses. I, therefore, say, that the lien, as filed against the three houses, is not a compliance with the provisions of the act of assembly, and that one building cannot thus be made- liable for the materials furnished for the others.
    “ 2d. Is a claim thus filed, good as alien against each house, for the materials furnished for each ? How is it to be ascertained what materials, either in quantity or quality, were furnished for each house ? The lumber merchant’s books do not state ; the lien filed, does not state. What evidence have we of what Was furnished for each house ?
    “ The object of the act was to secure the material men, and give notice to purchasers. A suit is to be instituted, or a claim filed ; but how would the claim filed in this case, be notice to purchasers ? Suppose one builder had paid for all the lumber furnished for his building; he could not sell, because this lien is filed against three houses, including his, and binds his property ; and it does not appear on the record that the lien is discharged as to either. The claim should be filed against each house separately, for the materials furnished for each; and more, especially when houses are owned by different persons. The difficulty cannot be greater in distinguishing the materials furnished for each house, when the houses are erected adjoining, than when they are erected in different parts of the city. The material men may thus be sufficiently secured ; and it is necessary for the security of the builder and purchaser, that it should be so. I think, therefore, that this claim is not good as a hen against each house for the value of the materials furnished for each building, if the quantity oi^value furnished for each were ascertained.
    “ 3d. It is also contended by the defendant, that they are purchasers at sheriff’s sale, and that a sale by the sheriff, under a judgment and execution against the property, discharged it from all claim, by material men, &c. After what has been said upon the other question, it is not necessary that we should give any opinion on this point; .but as a decision now may avoid future litigation, and the opinion of the Supreme Court may be had upon this, as upon the other points, we will express our opinion, without touching the general que^ion, whether a sale, under a subsequent judgment, will discharge the lien of a prior judgment creditor. The act of 1806, does not prohibit, but contemplates a sale of the premises. by any creditor, and a distribution of the money pro rata; but prefers the lien of the material men, &c. before other liens, originating subsequent to the commencement of the building. If a judgment could not sell, then the property could not be sold but under a claim by a material man, carpenter, See.; and the property might be wasted, and all the creditors injured, while controversies about the claims of the workmen were pending. We are not controlled by any decisions on the subject. No injury or inconvenience can be sustained by permitting any creditors to take in execution and sell the premises. All will have like notice, as if sold under an execution at the suit of a material man, and, when sold, discharged of incumbrances. Purchasers may bid with confidence ; the property will bring a better price; and all the creditors be benefited. We are, therefore, of opinion, that the sale by the sheriff, in this case, discharged the premises from all liens by the material men,” &c.
    
      Wheeler and Broome, for the plaintiff in error.
    That it was as much the intent of the Legislature to provide for joint- liens on several houses, as for those on a single house, is deducible from all their acts in relation to this subject. The act of 17th March, 1806, Purd. Dig. 416, uses the plural as well as the singularuiumber, and declares, that no such debt shall remain a lien on the said houses or other buildings longer than two years, &c.; and the second section of the supplement of the 28th March, 1808, provides, that no judgment rendered on a scire facias, shall warrant the issuing an execution except against the building or buildings upon which the lien existed.' In their various extensions of the benefits of this law to different parts of the State, the Legislature have constantly had in view towns and villages,-in which several houses are built together, from which it is to be inferred, that a joint lien was intended to be given. The act of 1803, gave a lien only for the debt contracted with the owner of the building, but the act of 1806, looked to the house alone,.without regard to the person who incurred the debt. The lien exists for two years, although no claim be filed, or any notice given of its existence. It is, therefore, evident, that the Legislature intended to give the mechanic the full benefit of his lien, and the Court will not by sustaining a technical exception to form, defeat the object of the law. The act of assembly prescribes no particular form of proceeding, and all its substantial requisitions have been fulfilled. The course pursued, gives notice to all who are interested, of the existence of the claims of the material men, and an opportunity of coming in to defend. If a claim be filed for more than is due, it surely is not a forfeiture of what is really due. A man may file his claim for what he believes to be due, as in a declaration, a plaintiff may demand more than he is entitled to, and recover what he can prove to be the just amount of his demand. All that can be said in the present case is, that the claim was too much as applied to each house. The .act of assembly does not distinguish between joint and separate liens; it only makes the house subject to the debt due ; and if the debt be incurred in the erection of several houses, all ought to be answerable for it. If several persons build in common, they cannot complain if they are made responsible in common. The case is no harder than that of partners who are liable for the waste of each other. There is in fact an advantage, in several respects, in erecting several houses together, as parts of timber, &c. which would be wasted in the erection of a single building, may be used to advantage. The course pursued on the present occasion is conformable to the construction given by usage to the lien laws; one-half the claims filed being against more houses than one. If however a loss is to be sustained, it ought to fall on those, who by employing the defendant as their agent, led the plaintiff into the belief that he was the owner of the whole property.
    But it is not necessary to prove a joint lien. It is sufficient to shew, that each house is liable for its own materials, which cannot admit of a doubt, unless a mere error in form, if there be any error, is fatal. %
    
    The lien was not discharged by the sheriff’s sale. The ease is much stronger than that of a judgment, for-the lien operates as a pledge of specific property, which can be relieved only by payment of the whole debt, or by payment of part under a sale by the lien creditor. It certainly cannot be optional with á iudement creditor, at what time the sale shall jo 7 take place, to the injury of those who, by virtue of their pledge, quasi owners of the property, by a sale during their absence, or at a moment when real estate is greatly depressed. A lien of this description resembles a mortgage. It is fixed and binds no other property. It is not created by the act of the debtor, and therefore cannot be destroyed by his act. The owner of the house has no other property than that which remains after payment of the lien creditors ; and therefore a judgment creditor who comes in under the owner, can acquire no greater rights than he possessed. The right of the judgment creditor is a postponed claim; the right to sell, being given by this law to the lien creditor, in making provision for the recovery of his debt.
    Bradford, for the defendant in error.
    It cannot be supposed, that the Legislature intended to commit an act of such monstrous injustice as to make the property of one man answerable for the debts of another. There is nothing in the law itself to sanction such a construction, and if the usage under it has been contrary to its provisions, it can have no effect/ There is nothing in the plural number except the word “ allf at the commencement of the first section of the act of 1806, and the words “ houses and other buildings,” in the proviso which limits the lien to two years unless an action be instituted, or a claim filed within six months after performing the work or furnishing the materials. These words, however, afford no inference in favour of a joint lien ; they merely point out the objects on which liens are to operate. That part of the act which directs the manner in which mechanics’ liens are to be carried into effect, contradicts the opposite argument. The party is authorised to bring an action, or file a claim. This action must be personal, and brought against the person liable for the debt, for it can never be seriously contended, that a personal action would lie against A, for materials furnished for the house of 2?, merely because the same lumber-merchant supplied materials for the erection of the houses of both, i Again : The law contemplates a sale, and after paying the lien creditors, the judgment and mortgage creditors come in-If the lien be joint, how is the money to be distributed ? There would be no such to go by. But if the lien be only upon the house for which the materials were furnished, the . , r , r * t j material men will come in tor the exact amount furnished, and afterwards the judgment and mortgage creditors, according to their respective rights. The principles of all the laws relating to this subject, are precisely the same as those of the act of 1784, in favour of ship builders, and it was never supposed, that a person who furnished materials, had a lien against more than one ship. If the lien laws be extended beyond the letter, many disputes and difficulties about titles must necessarily arise. Sharpnack v. Wilson, 1 Hall’s Law Journ. 93, (new series.) The owner of a house could not sell it. It would be impossible to discover wha.t liens there were against it, for the purchaser looks only for incumbrances in the name of the owner. The case now before the Court, exemplifies the truth of this remark. There being no claim filed against Pringle or Mullowny, but generally against Douglass, it has escaped the attention of the auditor, and is now set up against the purchaser. There is no hardship imposed upon the material-men in requiring them to designate the houses individually, for which materials were furnished, and file their claims accordingly. If these three houses were distant from each other, the present argument would hardly be attempted; and the principle cannot be varied by the circumstance of their standing together.
    If the claim filed in this case cannot be supported, so as to affect the three houses jointly, it cannot be separated in proof on the trial, by showing what was furnished for each. It is like any other joint claim, which the Court has no power to divide. In á suit on a joint contract, the plaintiff will not be permitted to prove a contract with one. Here the claim was joint, and the scire facias, judgment, and execution must pursue the claim.
    A lien created by an act of the law, may be discharged by an act of the law, and the purchaser hold the 'land exonerated from it, where a sale has taken place under a judgment. If the law were otherwise, the material men might go on to finish the building, and thus entirely defeat the right of the judgment creditor. The law looks to a sale, not only by the lien creditor, but under a mortgage or judgment. If it be at the option of the material men, the sale may be postponed until the accumulation-of ground rent, or of claims, or Gf both united,' leaves nothing for the judgment creditor. If the lien creditor bring a personal action and obtain iuclgment, he may sell discharged of all liens; and no reason can be assigneci why the same effect should not be produced by a sale under any other judgment.
   Tilghman, C. J.,

delivered the opinion of the Court.

Joseph Gorgas, surviving partner of John Warner, issued • a scire facias in the District Court for the, city and county of Philadelphia, against Francis Douglas, owner, or reputed owner, of three houses described in the writ, and the terre tenants or possessors of the said houses. The proceeding is founded on an act passed the 17th March, 1806, entitled “ An act securing to mechanics and others, payment for their labour and materials, in erecting any house or other building within the city and county of Philadelphia.'’'1 Warner Gorgas were lumber merchants, and, in pursuance of the said act of assembly, filed their claim in the office of the protbonatory of the District Court, for the sum of 1427 dollars 28 cents, for lumber and materials furnished in and about the erecting and constructing of the said houses, against Francis Douglass, owner, or reputed owner, of the same. The fact is, that Douglass was the owner.of only one of the houses, and acted as agent for the owners of th.e other two. And the question is, whether the lumber merchants could, by virtue of the act of assembly, file this claim affecting the three houses jointly, and making each liable for the whole debt. The act provides: (Here the Chief Justice read the act.) However well intended this act may have been, and however good the effects which it sometimes produces, yet it is certain, that in practice it often creates great difficulties, and operates to the prejudice of the persons whom it was intended to protect, by throwing obstacles in the way of purchasers, by which the value of houses is diminished. It ought, therefore, to receive such a construction as may produce a system attended with as few embarrassments as possible. Not that the Court should undertake to alter the law where its meaning is plain; but where the expressions are doubtful, convenience should be consulted. When it is said, that “ all and every dwelling house, or other building, shall be subject to the pavuvu of the debts contracted for, or by reason of, any work done, or materials found,” &c., it would seem that each house was to he subject to the payment of its own debts. We are not to decide, on this occasion, what would be the law, if one man should put up several houses, all Ins own property, at one time. The case is of three houses, owned by three persons. The expressions which I have quoted, certainly do not authorise a joint lien against several houses, nor do I think that there is any weight in the words of the proviso, which declares, that no such debt shall remain a lien on the said houses or other buildings, longer than two years from the commencement thereof, unless an action be instituted, or the claim filed within six months, See. The words said houses or other buildings, are general expressions referring to houses and buildings, as the objects before mentioned, on which mechanics, &c. might have alien. To make several houses subject to a joint lien, would be a most intolerable grievance to the owners, because the cost of each might be very different. And with regard to the purchaser, the operation of a joint lien would be very injurious, because it would not be known what proportion each house was to bear. About the time of the making of this act of assembly, it was very much the custom for mechanics to build houses for the purpose of sale, and it cannot be supposed that the Legislature intended to give to the persons who furnished materials, a kind of lien which would obstruct the sale. It is said to be extremely difficult for a lumber merchant, who furnished materials for several houses, built under the superintendance of one agent, to keep a separate account against each house, but there would be little difficulty, if he made proper enquiry, before the lumber was furnished. And even if there were difficulty, why should he expect to be exempt from trouble, at the expense of his neighbour. There is something so unjust, in making one man pay for another’s house, that nothing less'than very clear expressions will warrant it. •' But the expressions in this act of assembly are so far from being clear in favour of a joint lien, that they must be twisted, and tortured, to make them bear the appearance of it. I conclude therefore, that no such lien can exist, in the case of several houses, owned by several persons ; but I give no opinion on the case of several houses owned by one person. The plaintiff however, endeavoured to mend his case, on the trial, by proving, what lumber had been furnished for each house. But this was contrary to his demand, set forth in the scire facias, and contrary to his claim filed of record. He cannot be permitted thus to vary his pretensions. The question is, whether the act of assembly tfijs joint claim against the three houses. If it (];,■[ n0(;5 the filing the claim in the office of the prothonotary was a void act, and the scire facias has nothing to rest upon. I am of opinion, that the joint claim was unauthorised, and consequently there never was a lien.

There was another point decided in the District Court, viz. that even if there had been a good lien, yet it was destroyed by the sheriff’s sale by virtue of a judgment subsequent to the lien, under which sale the defendant claimed. But on that point, this Court gives no opinion. The plaintiff never had a lien, and therefore the judgment of the District Court, for the defendant, must be affirmed.

Judgment affirmed.  