Opinion by
Mr. Justice Williams,
The mechanic’s lien in this case was filed on the 18th day of January, 1892, against Annie Heron, Isabella Heron and Patrick Heron, owners, and Patrick Heron, contractor. In February, 1893, the record was amended by consent by striking out the names of Annie Heron and Patrick Heron as owners, leaving the defendants to stand as Isabella Heron, owner, and Patrick Heron, contractor. At the trial an agreement in writing was placed upon the files setting forth that Isabella Heron became the owner in fee of the land on which the row •of houses was built, on the 5th day of March, 1891, by deed from Annie Heron, that she was the owner when the writ of scire facias issued, and that Patrick Heron was the contractor for the erection of the houses. The agreement further stipulated “ That this admission may be given in evidence on the trial on the above case, as proof of the facts above stated.” It was used, as we understand, by the plaintiff in making out a case in chief. The defendants replied by a denial of the plaintiff’s claim for extra work, and by putting in evidence the contract between Isabella Heron, the owner, and Patrick Heron, the contractor, which expressly stipulated that no lien should be entered “ for the work or materials necessary for the erection of the houses.” To escape from this stipulation the claimant made an attack upon the contract, alleging that Patrick Heron was in whole or part the owner of the lots; that Isabella Heron held the title as a trustee for her brother, so that Patrick Heron was in fact contracting with himself; and that the whole arrangement was a device to defraud subcontractors and material men. If the facts were found by the jury to be as thus .alleged, the contract was without effect, and presented no obstacle to a recovery by the claimant. On the other hand, if Isabella Heron was the owner of the lots, and Patrick Heron was only a contractor for the erection of the houses, then the •contract was valid and the subcontractor would be bound by its terms. This question of the relation of Patrick Heron to the title, the court below submitted to the jury as the important question of fact on which their verdict should depend, telling them if Patrick Heron was an owner in part or in whole of the lots on which he contracted to build the houses, the covenant not to enter a lien was not binding upon him or upon [383]*383the claimant; but if he was not an owner, then his contract with the owner bound him and the subcontractors under him. This was a correct instruction upon the effect of a finding that Isabella Heron held the title merely as a trustee. But it is subject to criticism in so far as it holds that the ownership of a part interest in the land necessarily invalidates the contract. We see no reason why one tenant in common may not contract in good faith with his cotenants for the erection of buildings upon the land held in common; nor why a waiver of the right to file a mechanic’s lien, in such a contract, should not be sus-tained. If the contract is not made in good faith but is entered into for the purpose of misleading, and so defrauding, subcontractors and material men, it should be held invalid because of the fraud, but not necessarily because the builder has a fractional interest in the lots on which he has contracted with the other owners to build. If Isabella Heron was a mere trustee, then Patrick was contracting with himself. He was both owner -and contractor. But if Isabella Heron was an owner, whether of one half, or of nine tenths, of the lots, and her brother was ■a contractor, in good faith, with her as such part owner and holder of the title, we see no reason why the contract should not be upheld and enforced. Its validity should in that case turn on the intention of the parties. If it was intended to serve a fraudulent purpose it would be invalid. If it was an honest effort between tenants in common to improve the common property, it ought to stand.
There is also an apparent contradiction upon the record which we think should be noticed. The learned judge told the jury that if Isabella Heron was the owner of the lots, their verdict should be in her favor. This was clearly right. The defendants, however, presented to.the court a series of points, four in number, in which the reasons for holding a subcontractor bound by the waiver of the contractor were presented in their order. In the first of these the court was asked to say that when a contractor covenants, in express terms, not to file a lien for his labor and materials employed in the work he has contracted to do, he is bound by his covenant, and cannot sustain a lien filed in disregard of it. The second point asked the further instruction that the right of the subcontractor to file a lien is derived through, and is dependent on, that of the contractor, so that [384]*384if the contractor is unable, by reason of his contract, to file a lien in any given, case, the subcontractor is, for the same reason, umible to sustain a lien in the same case. The third and fourth points presented the propositions contained in the first and second, as applicable to the facts, as the defendants assumed the jury might find them to be. These points were severally refused without explanation. He might well have said to the jury that these questions were not in the case if they found Isabella Heron was not the owner of the lots; but if they found her to be the owner, then these questions were in the case, and the general rule, as stated in the-first and second points, was the rule by which they were to be governed. The direction in the general charge, to find for the defendants, if satisfied of the ownership of Isabella Heron, involved and was an affirmance of the doctrine of these points, and we do not understand why the points themselves were negatived.
This whole subject of the position of a subcontractor has been so frequently considered in the last four years that it cannot be necessary to enter upon any general discussion of it. The general rule is that the parties to a contract make their own bargains, and if unwilling to trust to the personal integrity or pecuniary responsibilitj^ of those with whom they deal, require them to give security for their faithful performance of that which they undertake to do. In the case of contracts to build, the legislature has undertaken to provide security for one party to the contract by subjecting the property of the other to a statutory lien in advance of any judgmentfixing the amount due. The owner of the building is left to protect himself by action on the contract; but the mechanic or material man is taken care of by the statute. The contract to build is the basis on which the lien is made to rest.« The lien itself is an additional remedy, a statutory security, for the price of work done or materials furnished under the contract. This is class legislation. It is a paternal interference between parties for the protection of one at the cost and inconvenience of the other. It assumes the inability of certain persons to protect themselves, and the consequent duty of the state to intervene in their behalf. We are not questioning the wisdom of such legislation as applicable to mechanics and material men. That is a legislative question with which we have nothing to do. Our ques[385]*385tion is with the extent to which such legislation can override the actual contract entered into between owner and contractor. The law gives to debtors a right to retain personal property to the amount of three hundred dollars, exempt from levy and sale for debts. It protects their real estate from sale if it will rent for enough so that within seven years the rent will pay the liens.
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Opinion by
Mr. Justice Williams,
The mechanic’s lien in this case was filed on the 18th day of January, 1892, against Annie Heron, Isabella Heron and Patrick Heron, owners, and Patrick Heron, contractor. In February, 1893, the record was amended by consent by striking out the names of Annie Heron and Patrick Heron as owners, leaving the defendants to stand as Isabella Heron, owner, and Patrick Heron, contractor. At the trial an agreement in writing was placed upon the files setting forth that Isabella Heron became the owner in fee of the land on which the row •of houses was built, on the 5th day of March, 1891, by deed from Annie Heron, that she was the owner when the writ of scire facias issued, and that Patrick Heron was the contractor for the erection of the houses. The agreement further stipulated “ That this admission may be given in evidence on the trial on the above case, as proof of the facts above stated.” It was used, as we understand, by the plaintiff in making out a case in chief. The defendants replied by a denial of the plaintiff’s claim for extra work, and by putting in evidence the contract between Isabella Heron, the owner, and Patrick Heron, the contractor, which expressly stipulated that no lien should be entered “ for the work or materials necessary for the erection of the houses.” To escape from this stipulation the claimant made an attack upon the contract, alleging that Patrick Heron was in whole or part the owner of the lots; that Isabella Heron held the title as a trustee for her brother, so that Patrick Heron was in fact contracting with himself; and that the whole arrangement was a device to defraud subcontractors and material men. If the facts were found by the jury to be as thus .alleged, the contract was without effect, and presented no obstacle to a recovery by the claimant. On the other hand, if Isabella Heron was the owner of the lots, and Patrick Heron was only a contractor for the erection of the houses, then the •contract was valid and the subcontractor would be bound by its terms. This question of the relation of Patrick Heron to the title, the court below submitted to the jury as the important question of fact on which their verdict should depend, telling them if Patrick Heron was an owner in part or in whole of the lots on which he contracted to build the houses, the covenant not to enter a lien was not binding upon him or upon [383]*383the claimant; but if he was not an owner, then his contract with the owner bound him and the subcontractors under him. This was a correct instruction upon the effect of a finding that Isabella Heron held the title merely as a trustee. But it is subject to criticism in so far as it holds that the ownership of a part interest in the land necessarily invalidates the contract. We see no reason why one tenant in common may not contract in good faith with his cotenants for the erection of buildings upon the land held in common; nor why a waiver of the right to file a mechanic’s lien, in such a contract, should not be sus-tained. If the contract is not made in good faith but is entered into for the purpose of misleading, and so defrauding, subcontractors and material men, it should be held invalid because of the fraud, but not necessarily because the builder has a fractional interest in the lots on which he has contracted with the other owners to build. If Isabella Heron was a mere trustee, then Patrick was contracting with himself. He was both owner -and contractor. But if Isabella Heron was an owner, whether of one half, or of nine tenths, of the lots, and her brother was ■a contractor, in good faith, with her as such part owner and holder of the title, we see no reason why the contract should not be upheld and enforced. Its validity should in that case turn on the intention of the parties. If it was intended to serve a fraudulent purpose it would be invalid. If it was an honest effort between tenants in common to improve the common property, it ought to stand.
There is also an apparent contradiction upon the record which we think should be noticed. The learned judge told the jury that if Isabella Heron was the owner of the lots, their verdict should be in her favor. This was clearly right. The defendants, however, presented to.the court a series of points, four in number, in which the reasons for holding a subcontractor bound by the waiver of the contractor were presented in their order. In the first of these the court was asked to say that when a contractor covenants, in express terms, not to file a lien for his labor and materials employed in the work he has contracted to do, he is bound by his covenant, and cannot sustain a lien filed in disregard of it. The second point asked the further instruction that the right of the subcontractor to file a lien is derived through, and is dependent on, that of the contractor, so that [384]*384if the contractor is unable, by reason of his contract, to file a lien in any given, case, the subcontractor is, for the same reason, umible to sustain a lien in the same case. The third and fourth points presented the propositions contained in the first and second, as applicable to the facts, as the defendants assumed the jury might find them to be. These points were severally refused without explanation. He might well have said to the jury that these questions were not in the case if they found Isabella Heron was not the owner of the lots; but if they found her to be the owner, then these questions were in the case, and the general rule, as stated in the-first and second points, was the rule by which they were to be governed. The direction in the general charge, to find for the defendants, if satisfied of the ownership of Isabella Heron, involved and was an affirmance of the doctrine of these points, and we do not understand why the points themselves were negatived.
This whole subject of the position of a subcontractor has been so frequently considered in the last four years that it cannot be necessary to enter upon any general discussion of it. The general rule is that the parties to a contract make their own bargains, and if unwilling to trust to the personal integrity or pecuniary responsibilitj^ of those with whom they deal, require them to give security for their faithful performance of that which they undertake to do. In the case of contracts to build, the legislature has undertaken to provide security for one party to the contract by subjecting the property of the other to a statutory lien in advance of any judgmentfixing the amount due. The owner of the building is left to protect himself by action on the contract; but the mechanic or material man is taken care of by the statute. The contract to build is the basis on which the lien is made to rest.« The lien itself is an additional remedy, a statutory security, for the price of work done or materials furnished under the contract. This is class legislation. It is a paternal interference between parties for the protection of one at the cost and inconvenience of the other. It assumes the inability of certain persons to protect themselves, and the consequent duty of the state to intervene in their behalf. We are not questioning the wisdom of such legislation as applicable to mechanics and material men. That is a legislative question with which we have nothing to do. Our ques[385]*385tion is with the extent to which such legislation can override the actual contract entered into between owner and contractor. The law gives to debtors a right to retain personal property to the amount of three hundred dollars, exempt from levy and sale for debts. It protects their real estate from sale if it will rent for enough so that within seven years the rent will pay the liens. But the privileges thus conferred maybe waived, and are often waived in business transactions. So the privilege of securing an unpaid bill for work or materials by the entry of a mechanic’s lien may be waived by him on whom the legislature has conferred it; and there is no reason for supporting the waiver of the privileges of a debtor that will not apply with equal force to the waiver by a prospective creditor. The rule is now settled in this state that a contractor who has waived the right to enter a mechanic’s lien by a stipulation in writing is bound by such agreement, as well as by any other agreementhe may make. A mechanic’s lien filed in violation of such agreement is invalid and will not be sustained. But if the contractor can relieve himself from the effect of his contract by simply subletting all the work, and the furnishing of all the materials, and so confer on the persons with whom he deals the right he has surrendered, and covenanted not to exercise, he is provided with an open way to the repudiation of his contract and the perpetration of fraud upon his employer, against which it is practically impossible to provide. The only just rule to hold on this subject is the logical one, that one who acquires rights under the contract, or by reason of the contract, of another, acquires no greater rights than were possessed by that person under whom the claim was acquired. Schroeder v. Galland, 134 Pa. 277 ; Murphy v. Morton, 139 Pa. 347 ; Evans v. Grogan, 153 Pa. 121 ; Nice v. Walker, 153 Pa. 123.
The answers to the points were inconsistent with the general charge, and at variance with the decisions of this court in the cases cited and many others.
For the reasons given this judgment must be reversed, and a venire facias de novo awarded.