WoodRuff, J.
The proceeding in this case in the Marine Court, was had under the mechanics’ lien law of 1851, and was instituted to foreclose an alleged lien upon certain buildings erected by the defendants, Sloan & Leggett, to which the plaintiffs have attached lightning rods, inserted some eight or ten feet in the ground, and fastened to the buildings by iron spikes. After the rods were attached, and before the notice prescribed by the statute was filed with the county clerk, the owners, Sloan & Leggett, conveyed the buildings and lots of ground to the defendants, Wright & Purdy, in trust for creditors by deed duly executed, acknowledged and delivered, but such deed was not placed upon record until about two hours after the plaintiffs filed their notice to create a lien. The grantees, Wright & Purdy, are made parties de[97] fendant, and on tbe trial below, tbe Court rendered judgment against all of tbe defendants for tbe sum of $62 87, (tbe amount claimed,) witb costs.
Unless we are satisfied that tbe views we have heretofore entertained of tbe proper construction of tbe law, under wbicb this proceeding was taken, and of tbe nature of tbe proceeding itself, are wholly erroneous, and that most of tbe decisions we have made since tbe law was enacted are wrong, we cannot sustain this judgment.
I. Tbe defendants Wright & Purdy are in no sense, legally or equitably, debtors to these plaintiffs. Whether tbe property conveyed to them was liable to be affected by this alleged lien or not, they did not, by accepting tbe conveyance, become personally liable for tbe debt, and there is nothing in tbe statute, or in any view of tbe equities of tbe parties, to countenance such an idea. Tbe statute in terms applies and only applies to cases in wbicb tbe building is erected under a contract witb tbe owner, and it is as an owner contracting that be or bis property can be subjected to tbe proceeding, and we have held heretofore, and are still of opinion that where tbe owner is not personally liable by contract to tbe plaintiff himself (as where the claim is by a sub-contractor), no judgment can be ordered against tbe owner personally ; still less can such judgment be sustained against a grantee of tbe owner, who is a party to no contract with tbe plaintiff, relating to tbe matter.
II. Even against tbe defendants Sloan & Leggett, the judgment, if the plaintiffs showed themselves entitled to any judgment, should have been against their right, title, and interest in tbe premises at tbe time when tbe notice of lien was filed. That was precisely what was bound by tbe lien, wbicb it was the purpose of this proceeding to foreclose. Tbe proceeding is a proceeding in rem, and its primary object is to enforce tbe lien as such. Whether if tbe lien be established, and tbe defendant be shown to be liable personally for tbe debt to the plaintiff, a decree over may be made to cover a deficiency, it is not necessary to decide. Such does not appear By tbe return to have been tbe judgment in this case.*
[98] III. The question chiefly discussed, however, is whether the plaintiffs had, in fact, any lien to foreclose; and this question in its application to the present case divides itself into two questions:
1. Whether the plaintiffs had any lien upon which they could proceed in the Marine Court for a foreclosure, or to compel the application of the property bound thereby to its payment, for if not, then that court had no jurisdiction of the subject matter, and could render no judgment in the plaintiffs’ favor.
2. Whether upon any equitable principles the plaintiffs had a lien, as vendors, for the purchase money, which gave them priority over the rights acquired by Wright & Purdy, grantees, under the deed above mentioned, and which might have been enforced in a court having general equity jurisdiction, and on a complaint framed for the purpose of establishing such an equitable lien.
Although this latter question has been discussed at some length by the counsel for respondent, I do not think it necessary to the determination of this appeal. The action here is a statutory action, and though equitable in its nature, it is founded solely on the statute, and seeks the enforcement of rights given by statute. Some considerations connected with this branch of the inquiry may, however, be suggested in what follows.
First, then, Did the plaintiffs establish a lien which could be foreclosed in the Marine Court? I feel constrained to answer this question in the negative. That court has no jurisdiction to enforce equitable liens. It has no equity jurisdiction except such as this very statute confers upon it. Actions to recover or enforce claims to real property, or a right or title or interest therein, legal or equitable, must be brought in other courts. The statute in question has given the Marine Court jurisdiction in specific cases under that statute, and we have held and are still of opinion that this clothed that court with all the jurisdiction necessary to carry [99] the provisions of this statute into full effec^ and on. a foreclosure of the lien given by the statute, to order the premises to be applied to the satisfaction of the lien. But the plaintiff, inorder to obtain such a judgment in that court, must establish a lien under the statute, for it is that lien and that only which can be enforced in that court. All that counsel have urged in regard to a vendor’s lien for purchase-money, or the lien of a material man upon the structure into which his materials have entered, founded in the general principles of equity, may be laid out of view. That is not a lien of which the Marine Court can take jurisdiction for the purpose of enforcing it. The question is, therefore, had the plaintiffs a lien upon the premises under the statute % If not, the action must fail altogether, for the proceeding being a statutory proceeding, is based on an alleged lien. That is the very foundation upon which the plaintiffs must stand in court, and we have repeatedly held that if no lien is established, there can be no recovery in any form under this proceeding. Having called the defendant into court in a peculiar mode prescribed by the statute, for a particular purpose only'applicable to a specified claim, if the lien fails the plaintiff cannot convert his proceedings into an ordinary action for the recovery of money upon a personal contract and insist upon the defendant’s personal liability.
We have so often expressed our views of the essential requisites of the statute lien, that it is unnecessary to enlarge upon them here. The statute gives to the material man a, lien itpon:filing the notice with the county clerk, prescribed in section 6 of the act. It is then, and not until then, the lien is acquired. And to make this act the very creation of the lien by terms that should be so specific that no doubt could exist on the subject, the effect of filing such notice is stated to be that the claimant shall have a lien upon the right, title, and interest, of such owner existing at the time of sueh filing — as if the legislature not only intended that the statute lien should not only take effect from that time, but also to exclude the idea of the party’s “having’’ any legal or equitable lien before such filing.
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WoodRuff, J.
The proceeding in this case in the Marine Court, was had under the mechanics’ lien law of 1851, and was instituted to foreclose an alleged lien upon certain buildings erected by the defendants, Sloan & Leggett, to which the plaintiffs have attached lightning rods, inserted some eight or ten feet in the ground, and fastened to the buildings by iron spikes. After the rods were attached, and before the notice prescribed by the statute was filed with the county clerk, the owners, Sloan & Leggett, conveyed the buildings and lots of ground to the defendants, Wright & Purdy, in trust for creditors by deed duly executed, acknowledged and delivered, but such deed was not placed upon record until about two hours after the plaintiffs filed their notice to create a lien. The grantees, Wright & Purdy, are made parties de[97] fendant, and on tbe trial below, tbe Court rendered judgment against all of tbe defendants for tbe sum of $62 87, (tbe amount claimed,) witb costs.
Unless we are satisfied that tbe views we have heretofore entertained of tbe proper construction of tbe law, under wbicb this proceeding was taken, and of tbe nature of tbe proceeding itself, are wholly erroneous, and that most of tbe decisions we have made since tbe law was enacted are wrong, we cannot sustain this judgment.
I. Tbe defendants Wright & Purdy are in no sense, legally or equitably, debtors to these plaintiffs. Whether tbe property conveyed to them was liable to be affected by this alleged lien or not, they did not, by accepting tbe conveyance, become personally liable for tbe debt, and there is nothing in tbe statute, or in any view of tbe equities of tbe parties, to countenance such an idea. Tbe statute in terms applies and only applies to cases in wbicb tbe building is erected under a contract witb tbe owner, and it is as an owner contracting that be or bis property can be subjected to tbe proceeding, and we have held heretofore, and are still of opinion that where tbe owner is not personally liable by contract to tbe plaintiff himself (as where the claim is by a sub-contractor), no judgment can be ordered against tbe owner personally ; still less can such judgment be sustained against a grantee of tbe owner, who is a party to no contract with tbe plaintiff, relating to tbe matter.
II. Even against tbe defendants Sloan & Leggett, the judgment, if the plaintiffs showed themselves entitled to any judgment, should have been against their right, title, and interest in tbe premises at tbe time when tbe notice of lien was filed. That was precisely what was bound by tbe lien, wbicb it was the purpose of this proceeding to foreclose. Tbe proceeding is a proceeding in rem, and its primary object is to enforce tbe lien as such. Whether if tbe lien be established, and tbe defendant be shown to be liable personally for tbe debt to the plaintiff, a decree over may be made to cover a deficiency, it is not necessary to decide. Such does not appear By tbe return to have been tbe judgment in this case.*
[98] III. The question chiefly discussed, however, is whether the plaintiffs had, in fact, any lien to foreclose; and this question in its application to the present case divides itself into two questions:
1. Whether the plaintiffs had any lien upon which they could proceed in the Marine Court for a foreclosure, or to compel the application of the property bound thereby to its payment, for if not, then that court had no jurisdiction of the subject matter, and could render no judgment in the plaintiffs’ favor.
2. Whether upon any equitable principles the plaintiffs had a lien, as vendors, for the purchase money, which gave them priority over the rights acquired by Wright & Purdy, grantees, under the deed above mentioned, and which might have been enforced in a court having general equity jurisdiction, and on a complaint framed for the purpose of establishing such an equitable lien.
Although this latter question has been discussed at some length by the counsel for respondent, I do not think it necessary to the determination of this appeal. The action here is a statutory action, and though equitable in its nature, it is founded solely on the statute, and seeks the enforcement of rights given by statute. Some considerations connected with this branch of the inquiry may, however, be suggested in what follows.
First, then, Did the plaintiffs establish a lien which could be foreclosed in the Marine Court? I feel constrained to answer this question in the negative. That court has no jurisdiction to enforce equitable liens. It has no equity jurisdiction except such as this very statute confers upon it. Actions to recover or enforce claims to real property, or a right or title or interest therein, legal or equitable, must be brought in other courts. The statute in question has given the Marine Court jurisdiction in specific cases under that statute, and we have held and are still of opinion that this clothed that court with all the jurisdiction necessary to carry [99] the provisions of this statute into full effec^ and on. a foreclosure of the lien given by the statute, to order the premises to be applied to the satisfaction of the lien. But the plaintiff, inorder to obtain such a judgment in that court, must establish a lien under the statute, for it is that lien and that only which can be enforced in that court. All that counsel have urged in regard to a vendor’s lien for purchase-money, or the lien of a material man upon the structure into which his materials have entered, founded in the general principles of equity, may be laid out of view. That is not a lien of which the Marine Court can take jurisdiction for the purpose of enforcing it. The question is, therefore, had the plaintiffs a lien upon the premises under the statute % If not, the action must fail altogether, for the proceeding being a statutory proceeding, is based on an alleged lien. That is the very foundation upon which the plaintiffs must stand in court, and we have repeatedly held that if no lien is established, there can be no recovery in any form under this proceeding. Having called the defendant into court in a peculiar mode prescribed by the statute, for a particular purpose only'applicable to a specified claim, if the lien fails the plaintiff cannot convert his proceedings into an ordinary action for the recovery of money upon a personal contract and insist upon the defendant’s personal liability.
We have so often expressed our views of the essential requisites of the statute lien, that it is unnecessary to enlarge upon them here. The statute gives to the material man a, lien itpon:filing the notice with the county clerk, prescribed in section 6 of the act. It is then, and not until then, the lien is acquired. And to make this act the very creation of the lien by terms that should be so specific that no doubt could exist on the subject, the effect of filing such notice is stated to be that the claimant shall have a lien upon the right, title, and interest, of such owner existing at the time of sueh filing — as if the legislature not only intended that the statute lien should not only take effect from that time, but also to exclude the idea of the party’s “having’’ any legal or equitable lien before such filing.
Clearly here is no “ inchoate lien” given by the statute, to [100] operate from th<^ time when the materials are furnished, and unless it exists by force of the statute, and may be enforced under and in the mode pointed out by the statute, then this action cannot be sustained upon the ground that any such “ inchoate lien” existed. Indeed, I should be very reluctant to say, that in any case, in any court (where no fraud is alleged to have been contrived by the parties to prevent a lien, which might become the ground of relief in equity, under a distinct head of equity jurisdiction), when a statute has prescribed a particular mode of obtaining a lien for materials, and how it shall be acquired, and from what time it shall take effect; the party may, upon any general view of his equities, claim a lien from an earlier moment, and upon interests which the statute has not declared shall be bound thereby. If it was equitable that the material man should have a lien upon the building into which his materials had entered, from the time he parted with those materials, were not the legislature sufficiently conscious of this equity ? They were, it is to be presumed, fully aware of all the considerations which have led courts of equity to sustain liens for purchase money and the like, and it would have been quite easy to say that such liens shall exist from the time the materials were used, had they intended any such result, and yet they fix the time when the lien shall take effect. This, to my mind, excludes any claim to what counsel call an inchoate lien, to operate at any earlier period. And as before remarked, it is the actual lien, the statute lien, the commencement of which is fixed by statute, with which alone we have anything to do in this action.
Besides, I apprehend if anything in the nature of a lien is to be accorded to the material man, upon the general principles of equity as recognized in the cases of vendor and purchaser, ship-builders and mechanics adding labor and materials to personal property, or those claiming under an equitable charge upon an estate, such as are cited by the respondent’s counsel, that lien would be confined to the building itself into which the materials have entered. The lot of ground would not, as it is under the statute, be bound thereby.
But to return, in order to the acquisition of the statute lien, the statute itself must be strictly pursued, and there is in [101] this no inequity. The plaintiff claims the benefit of a right not existing at the common law. ITe claims the benefit of a summary proceeding for the enforcement of that right. He has his own option at any time within six months to secure himself by filing his notice. If he allows the time to pass until the owner has sold the property he cannot complain, he still has his action for the debt. He only fails, by his own delay, to secure the benefits of the statute.
When fraudulent transfers are made to cheat contractors or material men, as intimated by counsel, there will be time to consider their effect in an action in the appropriate court, and in a proper action to set aside the fraudulent conveyance so far as it operates to defeat the lien.
Under these views, how stands the present case ? On the eleventh day of January, 1855, the plaintiffs filed their notice. If the contracting owner had then any right, title, or interest in the building and lot whereon the same -was erected, the plaintiffs acquired a lien thereon upon that filing; assuming, of course, for the purpose of that remark, that one who attaches lightning rods to a building, is one “ who performs work and labor, or furnishes materials in building the house or other building, &c.,” within the meaning of the statute, a question not raised by the counsel on this appeal.* (McDermott v. Palmer, 4 Seld., 383).
Before that day the contracting owners had conveyed the [102] property to third persons in trust for creditors. Their title was gone. There was nothing in them to which the lien could attach. The return does not show that there was in them even the hope of a surplus of proceeds after paying creditors, or that the conveyance was not absolute in all respects as to them, or even that the conveyance, although in trust, was not upon valuable consideration, though in trust for creditors, as beneficiaries under the conveyance. Had it appeared that there was a reservation in the deed under which the grantors had a remaining equitable interest which could be bound by the statute, possibly it might be secured in this mode, but even that is questionable when the whole legal title is gone. And if, as seems to be assumed in the argument, the plaintiffs are themselves provided for as creditors in the deed itself, then they will obtain satisfaction, if the property is adequate, and as to them there can be no such residuary interest until their whole claim is paid.
I incline to the opinion that the terms right, title and interest in the statute are to be taken, in construing the statute, to mean legal right, title and interest, and not a mere equity. But it is not necessary to pass upon that question, for it cannot avail any thing to the plaintiffs in this cause. •
My conclusion is, therefore, under this branch of the inquiry, that the plaintiffs acquired no lien under the statute. They delayed too long the filing of their notice. The fact, that the deed was not recorded until two hours afterwards, does not alter the case. The plaintiffs acquired no lien while the owners had any right, title, or interest. That had passed to the grantors, and passed effectually whether the deed was recorded or not. Had the foreclosure been instituted against the owners, a judgment been had, and a sale been made to a Iona fide purchaser under the judgment who paid his money and received his deed, then the recording acts would have been material, and such a purchaser without notice would, I think, have held title against these grantees, if his title was acquired before their deed was recorded. But here no such question arises; and as between these parties, the deed was effectual to pass the owner’s right, title, and interest whether recorded or not.
[103] II. Much that I have above said, bears upon the inquiry, whether the proceeding might be sustained upon the facts before us as an equitable lien either apart from the statute or considered as an incident to the statute in a court of general equity jurisdiction ?
We are referred to cases in which an artisan has a lien upon a specific chattel entrusted to him for repairs, or upon a chattel manufactured by himself, and other like cases, in which a lien upon personal property exists, so long as the mechanic retains the possession of the chattel itself, and no longer; and to cases in which the vendee of real estate is treated, to the extent of the unpaid purchase money, as trustee for the vendor, and the land charged with the payment; and although there may be found cases in which a court of equity in marshalling assetts has recognized the builder of a house for a bankrupt as having a higher equity, and therefore, entitled to a preference over creditors at large, I apprehend that no case can be found in which, upon the mere fact that they had contributed labor or furnished materials towards a building, a court of equity have admitted the laborers and various contributors to the erection to a lien thereon, and on the lot whereupon it stands, for the payment of the respective sums due to them. If there be such cases, they proceed upon the ground of the insolvency of the owner, or fraud, or other ground for equitable interposition which is not the frame or ground of the present proceeding.
Besides, if the plaintiff relies upon a lien of this nature, there is no warrant whatever for extending it beyond the very article which he furnished, so long as that remains entire, and capable of distinct identification and separation. Even if the statute brings the plaintiff within its purview, his equities, if any, apart from the statute, would be satisfied by giving him a lien upon the fixture he has attached to the building. I apprehend, however, as before suggested, that those who attach the various fixtures to a house designed for use in connection therewith, such as lightning rods, ranges, and the like, have in the absence of fraud no such lien unless it be found in the statute itself.
But without pursuing the inquiry, when or how far courts of equity will, upon grounds of peculiar equity cognizance, re. [104] cognize and enforce the lien of mechanics, I am clear that no such ground will avail to sustain a purely statutory proceeding founded alone on the lien given by the statute itself.
I cannot admit the force of the suggestion that the credit is given upon the faith of the contemplated lien in such a sense as to give to the plaintiffs any higher equity. If he contemplated the lien when he delivered or furnished his work and materials, he contemplated taking the proper steps to acquire it, and within the proper time, and without such delay as might prevent his acquiring it at all; i. e. he contemplated just such a condition of things and just such a lien as the statute provides for, and no other.
In my opinion, the judgment must be reversed. It might perhaps have been enough to say that if the plaintiffs claim a lien under the statute, they have failed to gain a lien according to its provisions; and if they claim a lien upon equitable grounds existing independently of the statute, (if any such exist), they have not selected the court nor the mode of proceeding in which such a claim can be enforced.
Judgment reversed.