Pennock v. Hoover

5 Rawle 291, 1835 Pa. LEXIS 45

• Court: Supreme Court of Pennsylvania
• Decided: April 16, 1835
• Status: Published

Opinion

The opinion of the court was delivered by

Kennedy, J.

In this case, the sheriff after having sold the real estate of the defendant, consisting of a parcel of ground and eighteen unfinished houses, under a writ of venditioni exponas, issued at the suit of the plaintiff, brought the money arising therefrom, at the return of the writ into court. Upon this being done, an application was made, to have the money distributed among the creditors, whose claims were liens upon the property at the time of the sale, according to their respective dates of priority. For the purpose of facilitating this object, an auditor was appointed by the court, to examine into, and ascertain the nature, amount, and date of each of the respective lions, who accordingly made a report. To this report a number of exceptions have been filed, involving questions of some difficulty as well as importance.

The claims made upon the fund in court, consist of ground-rents, taxes, corporation-assessments, judgments, and debts due to material men, lumber-men, and mechanics respectively, for materials furnished, and labour performed in the construction of eighteen houses, or some part of the number, at least, all of which were designed for dwelling houses.

The first question presented by the exceptions to the report is, whether the auditor be right as to the time, when the building of the houses, Nos. 1,2,3,13,14, and 15 were commenced; or perhaps, more properly what is meant by the terms “commencement of the building,” as used in the proviso to the first section of the act of assembly, of the 17th of 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,” which declares “ that no such debt for work or materials shall remain a lien on the said- houses or other buildings, longer than two years from the commencement of the building thereof, unless an action for the recovery of the same be instituted, or the claim filed within six months after performing the work, or furnishing the materials, in the office of the prothonotary of the county,” &c.

On this question we think the auditor is correct, and that his opinion is fully sustained by the construction given to this act, and the doctrine laid down by this court in the American Fire Insurance Company v. Pringle, 2 Serg. & Rawle, 138, and afterwards in Hern & Co. v. Hopkins, 13 Serg. & Rawle, 269. The houses in the case before us, were from the beginning of the work on them to the end of it, intended for dwelling-houses, and with that view, the building of them was Commenced in the spring of 1829, by different persons, who expected to be the owners of them, and as such began the work, under contracts made with Warnet Myers, for the purchase of the ground upon which they respectively commenced the building of them. Warnet Myers, however, not being the legal owner of the ground himself, but having the possession of it merely under an agreement with the legal proprietor for the purchase thereof, and failing to comply with his agreement, never did become the legal owner of it. On the 16th of June, 1829, having become insolvent, he made an assignment of all his estate and effects to trustees; who on the 15th of August following, surrendered all right which Myers had under his contract, for the purchase of this ground, to the legal owner thereof. About the beginning of June 1829, those persons who had previously commenced the building of six houses, Nos. 1, 2, 3, 13, 14 and 15, under their respective contracts with Myers, for the purchase of the ground, quit working at them, and abandoned them, after having dug out and walled up the cellars. On the same day that Myers’s trustees surrendered the first contract, which he had made for the purchase of the ground, he by Samuel Hoover, who acted in trust for him, made a second contract, upon the same terms as the first, with the legal owner for the purchase of it. Immediately after this, Myers procured materials, employed mechanics, and with them resumed the work of building the six houses, making some slight alteration in the foundation of them, but still intending them for dwelling-houses, according to the original design, and at the same time commenced the building of twelve others, the residue of the eighteen houses already mentioned. By the terms of the act of assembly before in part recited, the liens thereby given to mechanics and material men, are made to commence expressly from the commencement of the building of the houses, without reference or,regard to the person or persons under whose direction or ownership of the property they are begun,' continuing to be the same, at whose instance the materials from time to time,' shall be furnished and the labour performed throughout the subsequent stages of the work, until finished. It is not the commencement of the right of ownership or claim to the property, nor yet the time at which such right may be first exercised, in'contracting for materials, and with mechanics, for the purpose of continuing the building, that ■ is to fix and regulate the commencement of the liens, on behalf of those furnishing materials, and performing the work; nor is it the time of furnishing the materials, or the time of commencing or finishing the work, but the time of commencing the building of the house, that gives date to the lien. Now, in point of fact, as long as the design or use, for which the house is intended, shall continue to be the same, a change of ownership after the building of it has been commenced, does not, and in the very nature of the thing itself, cannot, change the commencement of the building of the house: that must still continue to be the same, notwithstanding the right of property in the ground and the house begun upon it, shall have been changed subsequently, and passed through twenty or more different hands. Neither is it easy to conceive, how a change made in the plan of the house, after it has been commenced, by enlarging or contracting, or in any other respect changing the plan of it, as long as the original design of its character is retained, can with propriety be said to change or give a new commencement to the building of it. And the act of assembly of 1806, certainly contains hothing, which in the slightest degree militates against what I think may be safely considered the universal understanding as to what constitutes the commencement of the building of a house; and that is the first labour done on the ground, which is made the foundation of the building, and to form part of the work suitable and necessary for its construction. Indeed the act seems to require this construction, in order to carry into effect the intention of the legislature, which is the main thing to be attended to in expounding it. That this construction is the most favourable for those who shall furnish materials, and perform work, in the, erection of houses, for whose security and advantage, the act was exclusively designed, can admit of no doubt: for, they thereby gain a preference over all other liens, of posterior date to the commencement of the building, although prior to the time of furnishing the materials, or even contracting for them, and of performing the work. The words of the act in relation to this point, are, " all, and every dwelling-house and other building, &c.- shall be subject to the payment of the debts contracted for, or by reason of any work done, or materials found and provided,, by any brick-maker, brick-layer, stone-cutter, mason, lime-merchant, carpenter, painter and glazier, ironmonger,, blacksmith, plasterer, and lumber-merchant, or any other person or persons, employed in furnishing materials for, or in, the erecting and constructing such house or building, before any other lien, which originated subsequent to the commencement of the said house, or other building.” This preference can only be lost through the neglect of the party, or a determination on his part not to avail himself of it. If he neglect or will not institute an action for the recovery of his claim, or otherwise file the claim itself in the prothonotary’s office of the county, within six months after performing the work, or furnishing the materials, it will cease to exist, according to a provision contained in the act, in two years from the commencement of the building, so that if any loss shall accrue to him, from not having instituted his suit or filed his claim within the six months, as required by the act, he may be said to have occasioned it himself, and the maxim volenti non fit injuria will apply.

The next question arising out of the exceptions, is, can the same debt, contracted for, or by reason of any work done, or materials found, and provided by any brick-maker, brick-layer, stone-cutter, mason, lime merchant, carpenter, painter or glazier, ironmonger, blacksmith, plasterer, and lumber-merchant, or any other person, or persons employed in furnishing materials for, or in the erecting and constructing of two or more dwelling-houses, or other buildings, adjoining to each other, and belonging to the same person, become a lien under the act of assembly already mentioned, and its supplement of the 28th of March, 1808, against all such houses or buildings ? This question is left undecided by the case of Gorgas v. Douglass, 6 Serg. & Rawle, 512. The court in that case only decided, that the act of 1806, did not authorize a joint claim to be filed, against three adjoining houses, belonging to different, persons, for materials furnished, for the building of them. Chief Justice Tilghman, who delivered the opinion of the court, says, “ we are not to decide on this occasion what would be the law, if one man shall put up several houses, all his own property, at one time. The case is of three houses owned by three persons.” And again he repeats, “I give no opinion on the case of several houses owned by one person.”

Although in drawing up the act of 1806, grammatical form does not appear to have been strictly attended to, and it may be that the words employed in the beginning of the first section, would rather seem to indicate an intention that each house or building should only be liable for such work as was done in the construction of it, and for such materials as were either specifically furnished for the building of it, or otherwise actually used for that purpose, yet I am inclined to believe that the intention of the legislature when collected from the whole of the act of 1806, and its supplement of 1808, was, to give the party who furnished materials generally, for theconstruction of two or more houses belonging to the same owner, without knowing how much of them was intended for each particular house, or who performed labour in the construction of them under one entire contract generally, a joint lien upon all the houses according to the full extent of the contract.

The effect of the opposite construction, which is contended for in this case by the judgment creditors, would be, that whenever a material man makes an entire contract to furnish the same owner with all the materials necessary to construct two or more houses, for a certain sum of money, or at certain rates, or a mechanic agrees for a gross sum of money to do all the work necessary for the construction of them, neither would have a lien upon the houses, or any of them, as a security for the payment of his claim after the materials shall have been found and the work done. For having made an express contract, each party must abide by it; and if the material man or the mechanic in such case, bring a suit within the six months after having furnished the materials or done the work, it is clear, that having made but one contract under which he was to be paid a gross sum of money upon the delivery of the materials or performance of the work, he can only sustain' one action in which he can obtain but one judgment, which must be for the whole amount of his claim; or if instead of bringing an action to perpetuate his lien against the houses, he files his claim in the prothonotary’s office within the six months, he must still have regard to the terms of his contract, which makes his claim entire and incapable of division. He can therefore file but one- claim, which must be for the whole amount of it against all the houses jointly, otherwise his contract ■would not support or correspond with the claim filed, which would be an insuperable objection to his recovering in a writ of scire facias sued out on it, according to the principle laid down in Gorgas v. Douglass, 6 Berg. & Rawle, 521-2. It necessarily results then in this, that the lien under the acts of 1806 and 1808, must be joint upon all the houses in such case, or otherwise there can be no lien at all. Against such a lien being created by these acts, it is contended first, that it is contrary to a strict grammatical construction of them. And again, that great inconvenience as well as injury would necessarily arise to the owner of the houses, who might thereby be precluded from selling any one or more of them without he could obtain a sum sufficient to discharge the whole amount of the lien. Whereas, if each house or building is made liable only for the proper expense of its construction, the owner may often have it in his power to sell the whole number consecutively for a much larger sum of money than the amount of the liens upon all; or to sell a part for a sum sufficient to discharge the liens upon all, and to retain the residue; but if he be compelled to wait until he can sell at once as much of the property as will be sufficient to satisfy the aggregate amount of the liens, he may not happen, to meet with a purchaser or purchasers at the same time who are willing to buy so largely, and finally he may have it sold for him, or otherwise be compelled to sell it himself at a great sacrifice. Doubtless such inconvenience may occasionally take place; but the owner of ground who wishes to have houses or other buildings put upon it, has it in his power if he chooses to guard against such inconvenience in making his contracts for materials and labour to be employed in the construction of bis houses, It is only necessary for him to make a separate contract for the building of each house, or to introduce a clause into a contract for the whole, that each house shall be charged for separately and liable only for the expenses of its construction, and the lien under the act will follow the nature of the contract. But where the owner is induced to avoid this course because he discovers that he can obtain materials and labour for building his houses at much less price by making an entire contract for the whole, than he could by making a contract for each house separately, why shall he not be permitted- to judge for himself in this particular and to act accordingly ? It is plain that it was not the intention of the legislature to interfere in the least with the exercise of such a right. And although it is possible that a man may in some instances err in judging for himself in such a case, yet in most cases, if not in all, it will be found more safe to leavp it to himself to judge of; because it must always depend upon circumstances best known to himself,-whether one contract for the whole or a separate contract for each house will be most likely to promote his interest the best.

The objection that a joint lien is in opposition to the grammatical construction of the act is perhaps not very clear; but even if it were, it ought not to prevail where it would militate against the meaning and intention of the legislature, as collected from the whole

of the act, and against that construction which gives to every word, clause and sentence, a pertinent and useful effect, instead of rendering some of them inoperative. It is said, that because the act declares that “ every dwelling-house or other building (thus using the singular number) shall be subject to the payment of the debts contracted” for the building of it, the lien created by the act is for the expense of building it alone and not for that of others; and for the same reason the expense of it with that of others cannot become a joint lien against the whole, although it be but one debt growing out of one entire contract made for building all the houses together. This alone perhaps in almost all cases without other words or expressions being used, would be deemed insufficient to denote severalty, and at the same time to exclude plurality. For even in the construction of penal statutes, where the rule is, that they shall be taken strictly, the use of words in the singular or plural number, is sufficient to embrace objects indiscriminately either in the plural or singular number. As if it be enacted, that he who steals a horse shall not have the benefit of clergy; it could not be pretended, that if he at the same time stole more than one horse, his offence would not come within the act. So the burning of a dwelling-house has been always held to come within the provisions of 23 Hen. 8, cap. 1, although the plural “dwelling-houses” are the words used in that statute. 2 Hale, P. C. 365. But the meaning of the legislature is the first and great object to be sought after in expounding their acts; and where the words employed are dubious, the most universal and effectual way of getting at it, is by considering the reason and spirit of the act, or the cause which moved the legislature to pass it. 1 Bl. Com. 61. Observing this rule, in connection with one or two others, which require the subject-matter and the words of the act throughout to be particularly attended to, we may arrive at a pretty correct conclusion as to what it was-that the legislature intended. It is obvious, that the reason of passing the act of 1806 was to secure, as far as practicable, to material men and mechanics, payment for materials furnished and labour performed by them respectively in the construction of dwelling-houses and! other buildings, by making the houses and other buildings subject to* the payment of the debts thus contracted, and creating the same a lien upon the property until paid. Now it is well known to every one conversant with this subject, and we must take it for granted,, that it was known also to the legislature at the time that they passed the act, that material men and mechanics engaged in putting-up houses in the city and county of Philadelphia, had long before that been in the habit of making with the owner of the ground a single contract to furnish materials sufficient for the building of several adjoining houses, in consideration of a certain sum of money or certain prices for the materials, according to their nature and the quantity delivered, to be paid for the same, and a like contract for doing the work thereof. And it is certainly not unreasonable to suppose that inability to pay occurred at least as often, if not more .frequently, in such cases, and to a much greater amount than in cases of contracts for the building of a single house only, and that the remedy provided by.the act must have been intended by the legislature to extend to the greater evil as well as the less. If the legislature, knowing that contracts by the same person to deliver materials sufficient for the building of several adjoining houses, belonging to the same owner, or to do the work thereof, were common, had intended to exclude them from the operation of the act in favour of the material men and the mechanics, and that debts arising under such contracts should not become liens upon the houses for which the materials were found, and upon which the labour was performed, is it not reasonable to believe that they would have employed terms very different from those used ? How is it possible with ' such an intention that they could have directed as they have done, in the close of the second section of the act of 1808, which is in these words, “ provided, that no judgment rendered in any scire facias shall warrant the issuing an execution, except against the building or buildings upon which the lien existed as aforesaid.” Thus showing, by necessary and irresistible implication, that the legislature were of opinion, that under the provisions of the acts of 1806 and 1808, a claim might exist and be filed as alien upon more buildings than one, upon which a single writ of scire facias might be sued out, one judgment only obtained, upon which an execution might be issued against all the buildings upon which the lien existed; but lest it might be thought that an execution could be issued upon such judgment against other buildings than those upon which the lien existed, they thought proper thus expressly to prohibit it. It is said, however, that this provision is, contained in a ’ proviso, and therefore ought not to have an influence upon the enacting parts of the acts. But in the Attorney General v. The Governor and Company of Chelsea Water Works, it was held, that where the proviso of an act of parliament was directly repugnant to the purview, the proviso should stand and be a repeal of the purview, as it spoke the last intention of the makers. Fitzgibbon, Rep. 195.

Seeing then that it was a common practice with material men and mechanics, before the passage of the act of 1806, to make one entire contract with the owner of the ground, to furnish materials for, and to perform the work of building two or more houses for a certain sum of money, or at fixed rates, and it occasionally happened that their employer after they had furnished the materials and performed the work, was unable to pay them, and his property, during the interim, including the houses they aided him in building had became incumbered beyond its value, it may be very rationally and fairly inferred that such cases formed at least a part of the mischief that was intended to be remedied by 'the passage of the acts in - question: and being also inclined to think that the words and various expressions of the two acts when viewed and taken all together, embrace and provide for such cases, I am necessarily brought to the conclusion, that the material-man who- furnishes at the request of the owner, materials for the building of two or more houses generally, without any special contract, or under a contract to furnish whatever,may be necessary to complete the whole number at a fixed sum, or according to certain rates, or the mechanic who in like manner, performs work in putting up the houses, acquires ajoint lien for the amount of the materials found or the work performed upon all the houses. That such has been the opinion of the most eminent counsel in the state, may be fairly inferred from Knorr v. Elliott, 5 Serg. & Rawle, 49, in which Mr. Binney appeared for the plaintiff and Mr. Chauncey for the defendant. There is no statement of the case given, except what is contained in the opinion of the court, delivered by the late Chief Justicewho says, “ the plaintiff obtained a lien on certain houses now belonging to the defendants, for materials furnished by him for the building of the said houses. The plaintiff’s claim was filed in the office,” &c. The claim and the lien are both spoken of in the singular number, and the houses in the plural; so that it is manifest - there was but one claim and one lien, which was admitted to have had an existence at one time upon several houses under the operation of the act of 1806, but was opposed then on the ground that as no scire facias had been sued out upon it within five years from the time it was filed in the prothonotary’s office, the lien was extinguished by the act of the 4th of April, 1798, which-limits the liens of judgments to five years unless revived by scire facias.

So I also think, that where the lumber-merchant furnishes materials for, or the mechanic does work, in the construction of two or more contiguous houses, belonging to the same person, under a general request, without any specific contract for each house separately, that he may under the acts of assembly, either file his claim for the amount against all the houses jointly, or he may apportion it among them according to the value or price of the materials furnished or the work done to each, and file his claim accordingly against each house separatély, and thus continue his lien in either form.

There being nothing then, as I conceive, in the acts of assembly, which restrains the parties from including in the same contract, materials for, and the work of as many contiguous houses as they please, it would seem to follow that the ' nature and terms of it, together- with the work done under it, ought to regulate the operation and extent of the lien. Hence it would extend itself to all the houses or buildings actually commenced, for which the materials were furnished or work done under the same contract, and would become a joint lien for the whole amount of the- debt, commencing on each house with the commencement of the building thereof This appears to be not only the most obvious as well as safe and certain rule or guide, by which the nature and the extent of the liens of material-men and mechanics may be determined, but the best suited to give to those persons, that degree of security for the payment of their respective debts, which was intended by the legislature. In its operation and effect, it may be fairly likened to the lien of a mortgage, given to secure the repayment of money borrowed, upon a number of different tracts of land, say eighteen in all, lying in as many different counties of the state. The lien under it would commence, and the whole amount of the debt become a charge upon each tract from the date of the recording of the mortgage in the county in which each tract was situated; and as it would scarcely be practicable to have the mortgage recorded in any two of the counties on the same day, the date of its lien on each tract of land would vary accordingly, but as soon as recorded in all the counties, the mortgage-debt would become a joint lien upon all the eighteen tracts of land embraced in the mortgage. And if in such case afterwards, while other liens existed on the mortgaged lands, some of prior, some of even, and others of subsequent date to that of the mortgage lien, a judicial sale were to be made of all the lands under a proceeding had upon the mortgage for that purpose, and the' moneys arising therefrom prove insufficient to pay off all the liens, the rule for appropriating it in such case according to seniority of lien could not well be misapprehended as it must be familiar to all.

The next question raised by the exceptions to the report of the auditor is, whether under the acts of 1806 and 1808, the ground upon which the houses are built, can be divided and apportioned among them so as to allow to each only such quantity of ground as is usually occupied with, and necessary for the enjoyment of bouses in a similar situation of like dimensions, and built upon the same plan? Upon this point I consider the opinion of the auditor correct, and in perfect accordance with what appears to me to be a reasonable interpretation of the acts of assembly. Against his opinion it has been argued, that as the whole of the ground formed the subjedt of but one purchase, and consisted only of one parcel, without any subsequent actual division being made of it by the purchaser, it was not competent for the auditor to make a division of it, or of the money arising from the sale of it. Now in respect to this, it may be observed, that by a literal construction of the act of 1806, it may be made a question, whether the lien can be extended beyond the ground actually covered by the house or building; because by the words of the act, it is the house or building that is made subject to the payment of the debt, and no mention whatever is made even of the land or ground upon which it stands. It is therefore only by a liberal, or perhaps more properly speaking, a reasonable construction, that the lien created under this act can be made to embrace any land not covered by the buildings. And although it may be neeessary, in order to carry into effect, what seems to have been the intention of the legislature as manifested throughout the act, to extend the lien to land beyond what may be covered by the buildings, yet there must be some reasonable limit in this respect 5 and here it appears to me that the purpose of the legislature will be fully satisfied by extending the lien beyond the ground covered by the buildings, to as much more as may be necessary for the convenient occupation and enjoyment of them according to the intention. and design of the owner at the time of their commencement. This would seem to be giving to the party all the security that was intended by the act; and any thing short of this would perhaps in most instances, render it very ineffectual.

In this case the auditor has made á division of the ground allotting to each house not only what would seem to be as much as is usually occupied as a curtilage to such houses placed in a similar situation of the county or city of Philadelphia, but all that the owner of the houses had intended should be used as appurtenant thereto, according to his plan of improvement as indicated by the work done upon the ground itself. In this I think he was right. The'residue of the ground not being necessary to the proper occupation and enjoyment of the houses, remained of consequence unincumbered by the debts contracted in the building of them, but liable to the payment of the judgments which were liens upon it; to which the auditor has very properly appropriated the money arising from the sale thereof.

The next question which requires notice, arises out of the exception taken to the report of the auditor by the counsel for the Commissioners of the Kensington District of the Northern Liberties. By the first section of the act of assembly passed the 3d of February, 1824, Purd. Dig. 190, entitled “ an act relating to taxes on real estate in the city and county of Philadelphia” it is enacted, that “ all taxes, rates and levies which may thereafter be lawfully imposed or assessed to be applied for any purposes either in the city or county of Philadelphia on real estate situate in the said city and county of Philadelphia shall be, and they are thereby declared to be a lien on the said real 'estate On which they may thereafter be imposed or assessed, &c.; and the said lien shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility, which the said real estate may become charged with or liable to, from and after the passing of that act.” And by the 8th section of it, it is further enacted that, “ all and singular the provisions of this act shall be deemed and taken to apply to the taxes, rates and levies imposed or assessed by authority of the city of Philadelphia or any corporation in the city or county of Philadelphia, upon real estate situate in the said city or county, except water rents, which may be imposed lor the use of the Schuylkill water, which shall not be considered as coming within the provisions of this act.”

After this, by an act passed on the 19th of March, 1828, pamphlet laws of 1827-8, pages 190-1, the board of Commissioners of Kensington district of the Northern Liberties were empowered to pave all or any part of the foot-ways and gutters within the said district; and upon the application of a majority of the owners of the lots fronting on any street, road, lane or alley, to pitch and pave any such street, road, lane or alley within the said district; and to tax the property in front of such foot-way, street, road, lane or alley as should be paved, or pitched and paved, in proportion to the extent of the same in front. The Commissioners by the third section of this latter act are likewise authorised to recover the taxes assessed for pitching, paving and curbing in front of property unoccupied, or if occupied without sufficient personal property thereon to satisfy the same, in the same manner as county rates and levies in the county of Philadelphia are dr thereafter may be by law recoverable; or to institute actions for the recovery of the said assessments before any tribunal within the state,' having jurisdiction of the amount claimed, against the owner, and to recover the same with legal interest from the timé of making said assessments. Under this act an assessment amounting to seven hundred and fifty-one dollars1 and forty-eight cents was made on the 12th of October, 1829, to defray the expenses of paving on Second street below Masters street, in front of part pf the property from the sale of which the money has been raised in this case. This assessment never having been paid, is claimed out of the moneys arising from the sale of that part of the pi’operty in front of which the paving was done. The auditor was of opinion that the assessment did not become a lien under the provisions of the two acts last mentioned upon any part of the property sold and therefore disallowed it. In this it appears to me he has committed an error. For the act of the 3d of February, 1824, declares expressly, that “ all taxes, rates and levies which may thereafter be lawfully imposed or assessed to be applied to any purposes either in the city or county of Philadelphia shall be a lien on the said real estate on which they may thereafter be imposed or assessed, &c. And that the said lien shall have priority to, and shall be satisfied before any recognizance, mortgage, debt, obligation or responsibility which the said real estate may become charged with or liable to from and after the passing of that act.” And again, by the eighth section of it all its provisions are made applicable to taxes, rates and levies imposed or assessed by any corporation within the city or county of Philadelphia. Now the Commissioners of Kensington District of the Northern Liberties being .a corporation within the county of Philadelphia, and the tax for paving having been lawfully assessed by them, it seems to me that it falls directly within the provisions of this act, and is thereby made a lien upon a part of the property sold in this case, and must be paid before any other debts to which it was liable. '

It it no objection to this tax being a lien upon the property upon which it was assessed, that the Commissioners of the Kensington District were not authorised to impose a tax for such purpose at the time of passing the act of 1824, because that act is prospective in its terms and makes all taxes which shall be thereafter lawfully assessed for any purpose whatsoever by any corporation- in the county of Philadelphia upon real estate lying therein a lien on the same. So that it is sufficient under the provisions of this act to make the tax a lien, if the corporation had lawful authority to assess it at the time of doing so, a'nd executed that authority in due form, no matter when it was granted. The act'only requires that the tax, when assessed, shall be lawfully assessed in order to make it a lien, and in the case under consideration it is admitted that ■the tax for paving was laufully assessed under the act of 1828, recited above, which is sufficient to make it a lien. The acts of 1824 and 1828 are in pari materia and to be construed as one act; and certainly there is nothing contained in the act of 1828 which alters or repeals any part of the act of 1824: neither can any good reason be assigned, as I apprehend, for making taxes assessed under an authority which existed at the time of passing the act of 1824 a lien upon the estate whereon they are assessed, that wmuld not apply with equal force to taxes assessed under an authority granted subsequently.

But it is objected that by an act passed the 20th of March, 1830, Pamph. Laws, of 1829-30, page 122, the legislature have declared, “ That all real estate within the Kensington District of the Northern Liberties, should be subject to the payment of the debts contracted-by the commissioners of the said Kensington District of the Northern Liberties, for or by reason of any work done, or materials furnished, for, or in pitching, curbing, and paving any street or footway in front of said real estate, before any subsequent liens; provided, that nothing therein contained, should in any wise impair or affect -such liens as were existing at the time of passing that act;” and that if such taxes had been a lien before, and at the time of passing this last act, it would have been unnecessary. The passage of this last act however, at most only proves that the legislature at the time, were not aware that all such taxes and assessments as are therein mentioned had been made liens by a previous act; and it cannot be sustained for a moment, that their mistake or misapprehension of the law in this respect, would make it different then from what it really was: or different from what it would have been in case this last act of 1830 had not been passed; for it repeals no part of the prior acts, so far as respects the making of taxes, .awfully assessed, liens upon the real estate whereon they are imposea. It is merely affirmative of them, and in effect declares that the law in this behalf shall be the same, that it was before under their operation. The proviso in this last act expressly declares that nothing therein contained shall in any wise impair or affect such liens as were existing at the time of its passage. Seeing then that it is merely an affirming and not a repealing act, the prior acts on the same subject must receive the same construction, as if it never had been passed; and the lien created under them is preserved by the proviso of this last act. The assessment then of seven hundred and fifty-one dollars and forty-eight cents for paving, with interest thereon from,the .12th of October, 1829, being alien upon a part of the property sold, when the act of 1830 was passed, and expressly preserved unimpaired by this act, must be paid according to the terms of the act of 1824, before any “recognizance, mortgage, judgment, debt, obligation or responsibility,” to which the property assessed was liable at the time of sale, and is therefore payable out of the money arising from the sale of that portion of the property in front of which the paving was done, and for which the assessment was made, before the debts of the material men, mechanics, or judgment creditors.

The claim of George Thorn requires now to be examined. It was for bricks furnished, and has been allowed by the auditor in his report. The amount thereof is three hundred and ninety-one dollars and' fifty-two cents, and appears from the report to have been filed within the six months, against eight of the houses generally, without any description or designation by which it is possible to ascertain which eight of the whole number were intended. Under this uncertainty, the auditor thought it right to charge this claim or the pro rata proportion of it, upon each one of all the eighteen houses' instead of eight only. This was clearly wrong, because it was charging the claim in part upon at least ten houses' against which no claim was ever filed, or alleged to have existed at any time. And from the want of a proper designation of the houses mentioned in the claim filed, it appears to me to be void for uncertainty, and altogether insufficient to continue the original lien, whatever it might have been against any of the houses beyond the two years from the commencement of the buildings. But it is alleged that Mr.' Thorn is able to show by proof the houses for which he furnished the bricks, and that the sale of the houses was made within the two years. If he does this, his claim to a proportion of the money will still be good ; because that will show that the lien created in his favour by the act was in full force at the time of the sale, and certainly would have continued to be so until the end of the two years, had not the sale been made, without filing his claim in the prothonotary’s office. The filing of a defective claim could not destroy the lien which he had at the time, though it would not have been sufficient to have continued it beyond the two years. As this case is to go back to the auditor, Mr. Thorn will have an opportunity of establishing his claim in the manner suggested; and if he does so, he will be entitled to come in for a pro rata proportion of it, otherwise it must be disallowed.

The exception to the report of the auditor, on account of his appropriating three hundred and fifty-five dollars and ninety-three cents, the balance of the proceeds of the houses, Nos. 13, 14 and 15, after satisfying their pro rata proportion of the liens of the material men and mechanics, according to the principle adopted by him in stating his account, claims our consideration next. The auditor, although of opinion that a claim for materials furnished or work done generally, without any specific contract, towards the building of two or more of the houses was good under the act of 1806, and that the party so furnishing the materials or doing the work, might at his election have either a joint lien against them all by filing his claim in that form, or a separate lien against each building for its due proportion of the materials furnished or work done, by filing his claim against each separately, yet thinking in the case of the claim being filed as a joint one, that each house or building embraced within it, was only chargeable with its aliquot proportion of the whole amount thereof, he has accordingly charged No. 14 or the proceeds thereof, with sixteen dollars and seventy-two cents, being only a small part of one of the claims of Isaac Childs, which was a joint lien upon No. 14, with two or three other of the houses; still leaving a considerable balance of it unpaid, and á surplus of the proceeds of No-14, which is included in the three hundred and fifty-five dollars and ninety-three cents, and transferred to the payment of the judgments,, being liens of a subsequent date. Instead of doing this, it appears to me that the whole of this claim of Childs ought to be paid first out of the proceeds of No. 14, before any part of it shall be appropriated towards payment of the judgments or any other subsequent liens. The general rule is well settled, that' liens upon real estate in this state, whether joint or several, must be satisfied out of the moneys arising from a judicial sale thereof, according to their seniority.

In further explanation of the principle here intended to be laid down, I would observe, that in case of a joint lien, each house or building bound by it, is liable for the whole amount thereof; and where there are other liens of equal date, some joint and others-several, as in the present case, all of equal date, the money arising from a judicial sate of all the houses, must be marshalled and appropriated in such manner, that the proceeds of no one of them shall be appropriated to the discharge of any subsequent lien as long as-any portion of a prior lien, either joint or several, upon the same-house remains unsatisfied.

The auditor in his report shows the claim of C. & J. Remington, amounting to one hundred and ninety-seven dollars and ten cents, to-be a joint lien on No. 13, and six other of the houses; but inadvertently, I presume, has omitted in schedule F. to apply any part of the-proceeds of No. 13, to the payment of it. This must be corrected! so as to allow to this claim a due proportion of the proceeds of No. 13, according to the principles already laid down.

It now only remains to notice what I consider an error in the manner of charging and allowing the claim of Isaac Childs. From the report of the auditor, it appears that he had three several claims of eighty dollars and seventy-nine cents each, which were each charged jointly on three of the houses, and a fourth of ninety-nine dollars and fifty cents, charged on four of the houses. Each claim embraced houses different from that of every other, so that no one or more of the same houses were included in any two of the claims. These claims were each reduced something by the auditor, but then he seems to have charged the aggregate of thb balance of them as one entire claim jointly, upon the thirteen houses embraced in the four several claims, instead of charging the balance of each claim separately upon the proceeds of those houses specified within it, and against which i’t was filed. This must also be corrected, or otherwise Childs, upon the principle laid down for adjusting and making distribution of the’money among the several claimants, will receive more than his due proportion.

Excepting so far as error has been herein shown to exist in the report of the auditor, it is considered to .be correct, but in order that the account and appropriation of the money may be stated and made according to the principles now laid down by the court, the case is referred back to the same auditor for that purpose.