
    [Philadelphia, February 17, 1838.]
    ROGERS against KLINGLER.
    Where a building was commenced in June 1835, and a person who furnished materials without filing any claim, commenced a personal action against the contractor, after the expiration of six months from the time of furnishing the materials, and without making the owner a party,_ or giving him notice of the suit, and obtained judgment and sold the building and lot, by virtue of an execution upon the judgment, as the property of the contractor, within two years from the commencement of the building, it was held, that the purchaser at the sheriff’s sale acquired no title.
    
      This was an action of ejectment brought by Robert Rogers against John Klingler, to recover possession of a messuage and *lot of ground situate on Willow street, between Eighth and Ninth streets, in the district of Spring Garden, and county of Philadelphia.
    The plaintiff’s claim of title originated as follows:—
    On- the 25th of August, 1836, William Stokes commenced an action of assumpsit in the District Court for the City and County of Philadelphia, returnable on the first Monday of September, 1836, against Henry Reeves, the architect of the building, which was the subject of the present action of ejectment, and of which John Klingler, the defendant in this action, was the owner. On the 9th of September, 1836, the plaintiff filed a statement and a copy of the book entries, upon which the action was brought; in which instrument the plaintiff averred that the action was brought for materials, (viz. bricks,) furnished to the defendant Reeves, the architect as aforesaid, upon the credit, and used in the construction of the premises which were the subject of this action of ejectment; setting forth a description of the same.
    On the 24th of September, 1836, the plaintiff obtained a judgment for want of an aflidavit of defence, and his damages were regularly assessed.
    On this judgment a fi. fa. issued to September term 1836, upon which the property, the subject of this action, was levied and condemned.
    A venditioni exponas then issued and the property was sold to John Ott; but he not complying with the terms .of sale, an alias venditioni exponas, issued on the 4th day of January, 1837, returnable on the first Monday of February, 1837, under which the property was sold, on the 30th of January, 1837, to the plaintiff in this action.
    On the trial before Kennedy, J. at the last Nisi Prius, the plaintiff after giving in evidence these proceedings in the District Court, and the sheriff’s deed to him, produced a witness named Hamilton, who testified as follows:—
    “I have a recollection of having served notice of the fi.fa. upon Klingler. It was more than five days’ notice. It was the usual sheriff’s notice. It was addressed to Klingler; and I think it stated that the property would be condemned as his. I kept no copy. I left a copy of the sheriff’s advertisement at his house (Klingler’s). Mr. Hopkins, as Klingler’s counsel, attended the sale: and read notices.”
    *The plaintiff also produced Henry Reeves, (the builder,) as a witness, who testified as follows:—
    “The building was commenced on the 4th of June, 1835. I commenced at it on the 5th of June, 1835. I was employed by Mi’. George Miller to build tbe property. There was a written agreement with me to build. This was the agreement, (a written agreement between the witness and George Miller, agent, was produced by Mr. Hopkins, counsel for the defendant, in evidence.) George Miller was the agent of Klingler in this contract. Klingler was understood to own the property. Klingler knew of the house being built. I got the bricks from Stokes.”
    The plaintiff also produced William Stokes as a witness, who produced and, proved his book of original entries, of which the copy of book entries, filed in the cause in the District Court, was a transcript, viz., “Henry Reeves Dr. for bricks furnished for a house in Willow street below Ninth street.” The witness then testified: “I had a claim against Reeves for bricks delivered in Willow street below Ninth street: they were furnished on the credit of this building; these bricks were furnished to the building on the credit of the building in this case in particular, as I had understood Reeves was not worth much.”
    The counsel for the defendant produced a copy of the notice read at the sheriff’s sale, which cautioned the public against purchasing ; and stated that Reeves had no title to the property.
    Upon this evidence, Judge Kennedy directed a verdict for the plaintiff, subject to the opinion of the Court in banc.
    Mr. Oakford for the plaintiff.
    The proceedings in the District Court were under the act of 1806, which gave a lien to mechanics and material men; and by the decisions under that act, the lien continued foi’ two years, although no claim was filed. Cornelius v. Uhler, (2 Browne’s Rep. 229); Lewis v. Morgan, (11 Serg. & Rawle, 234); Hern v. Hopkins, (13 Serg. & Rawle, 276).
    Mr. Hopkins for the defendant.
    The plaintiff produced a deed for a messuage and lot sold as the property of Henry Reeves. He can recover nothing but the property of Reeves. Klingler had no notice whatever of the proceedings in the District Court. The act of 1806, does not sanction this proceeding. There was no lien under that act unless a claim was filed or action brought within six months, except in the case of a sale by valid process within two years, when all lien creditors were entitled to be paid out of the fund. The action ought to have been against the owner of the building after the six months. A personal action against the *contractor must be within the six months, otherwise the cannot be affected. In Lewis v. Morgan, and Hern v. Hopkins, the owner of the building was made defendant; and the language of the Court in the latter case, must be understood in reference to that circumstance.
   The opinion of the Court was delivered by

Sergeant, J.

The first act of assembly which gave to mechanics and others a lien on buildings, was passed on the 1st of April, 1803. By that act, the building was made subject to the payment of the debts contracted by the oivner or owners thereof, for work done or materials provided. It contained the proviso incorporated into subsequent acts, that no such debt for work, &c., should remain a lien longer than two years from the commencement of the building, unless an action for the recovery thereof was instituted, or the claim filed within six months after performing the work, &c. Under this act, the contractor and owner must have been the same person; and no suit could be brought, or claim filed against any other person to enforce the lien. Steinmetz’s Executors v. Boudinot, (3 Serg. & Rawle, 542). Therefore the question whether the premises could be made liable in a suit against the contractor alone, could not occur. It is there intimated by Chief Justice Tilghman, that an action on the case, under the act, ought to be special, and to mention the manner in which the defendant was liable, in order that a special judgment might be entered, not affecting the person of the defendant, but the building only. This act was repealed, and supplied by another act passed on the 17th day of March, 1806, in which the words “contracted by the owner or owners thereof,” were omitted, the effect of which was to leave the right of the party to his lien as before, whether the debt were contracted by the owner himself, or another person. But this act gave no mode of proceeding to enforce the lien, and a doubt would seem to have arisen on the subject; for as early as the 28th of March, 1808, the legislature passed another act prescribing the mode of proceeding. It enables the person having a claim filed to proceed to recover by personal action, according to the nature of the demand, against the debtor, his executors or administrators, or by scire facias against the debtor and owner of the building, or their executors and administrators; provided, that no judgment rendered on any such scire facias should warrant the issuing of an execution, except against the building on which the lien existed. But where, as in the present case, the creditor has omitted to file his claim within the six months, he does not come within the purview of this act, and therefore neither this act, nor any proceeding one, authorizes him to bring an.action against the contractor alone, the owner being a different person, and recover judgment against the contractor alone, and sell the

*Property of the contractor under this execution, within the two and such sale transfer the of

the owner. Here the property levied on and sold was the right, title and interest of the contractor, Henry Reeves, in the building; but he had no title or interest whatever in it, and therefore nothing passed by the sale. I will not say, that if the plaintiff had brought a special action on the case, against the contractor, setting forth the liability of the building, and obtained a special judgment thereon and sale of the building, in conformity with the suggestion of Chief Justice Tilghman, above referee! to, a sale within two years might not have made the lien available. But that was not done here: the suit was personal, the recovery personal, and the execution and sale were only of the right of the defendant, the contractor. Even in the case I have supposed, however, the Court would, I should think, require the owner, if within reach, to be made a party to the suit, or at least, to have notice, and the opportunity of contesting the claim. Had a judicial sale of the building taken place within the two years, and the money been brought into Court to be distributed, the plaintiff would have come in as a lien creditor : at least, that has been the uniform understanding and practice here under the acts of assembly. But then the sale must be under regular proceedings to which the owner is a party; and the property must be sold as his. Here he is no party; his right and interest are not sold, but only the right and interest of the contractor, which is nothing. It appears to me to be clear, that the plaintiff did not, by the purchase at that sale, acquire a title to this building ; and that judgment must be rendered for the defendant.

Judgment for the defendant.

Cited by Counsel, 7 Watts & Sergeant, 198; 2 Barr,-364.

Cited by the Court, 4 Wharton, 96.  