Mortgage to Third Person to Secure Purchase Money. 149 § 156. A mortgage given by the vendee to a third person immediately upon receipt of his deed has also been held superior to mechanics' liens for work previously done for the vendee, on the theory that a mechanic's lien cannot be supported by a mere momentary seisin.148 But it has been held in Iowa that the fact that the owner of a lot obtained money from a mortgagee to pay for the land does not give the mortgagee a superior equity to one claiming a mechanic's lien on the land, he not being a party to the transaction." In a recent case in Connecticut the record showed that the plaintiffs contracted in March to build a barn, and about that time their agent asked the owner if the deed to the premises had been made; and he said it had, and that his father gave his note for $2,000. The barn was begun April 2d, finished April 16th, and a lien filed June 10th. It was agreed between the owner and his father that if the latter paid the $2,000 note, which came due April 1st, the son should execute and record a mortgage, but he failed to do so until June 2d. On this state of facts, the court held that the lien took precedence of the mortgage, as plaintiffs had no notice of the agreement between the father and son, and the father did not stand in the place of a vendor.150 DIVISION V. EQUITABLE TITLES AND TRUST ESTATES. Equitable Estates. § 157. Equitable titles, as well as legal ones, are subject to mechanics' liens.151 Thus, a person in possession of, and entitled to a 148 Middletown Sav. Bank v. Fellowes, 42 Conn. 51; Clark v. Butler, 32 N. J. Eq. 664; Macintosh v. Thurston, 25 N. J. 242; Chicago Lumber Co. v. Schweiter, 25 Pac. 592, 45 Kan. 207; Campbell's Appeal, 36 Pa. St. 247; Weldon v. Gibbon, 2 Phila. (Pa.) 176. 149 Wetmore v. Marsh, 47 N. W. 1021, 81 Iowa, 677. The date of record of the mortgage in this case is not stated. 150 Soule v. Hurlbut, 20 Atl. 610, 58 Conn. 511. 151 Crowell v. Gilmore, 13 Cal. 54; Empire Land & Canal Co. v. Engley, 33 Pac. 153, 18 Colo. 388; Hooker v. McGlone, 42 Conn. 95; Donaldson v. Holmes, pre-emption to, a tract of public land, has such an estate in the premises as to secure a lien to the mechanic who does work thereon for him.152 And land conveyed to one, and paid for by another, is subject to a lien for work done on it under contract with the latter.1 153 An option to purchase, contained in a lease, creates an equitable estate, which may be subject to lien.154 An interest in a building, under an oral agreement to let it, with the land, for a term of years, which has been partly performed, so as to take the agree ment out of the operation of the statute of frauds, being an equitable estate or interest, which the court may order sold, may be the subject of a mechanic's lien.155 Where a person erects a building on land which he has paid for and taken possession of, though no conveyance had been executed, he is the absolute owner of the whole of the beneficial interest therein, and the lien of parties furnishing materials for such building will not be divested by the fact that such equitable owner afterwards procures a conveyance of the land to be made to a third party.156 And the interest of one who, being in possession of land under a contract of purchase, erects a building thereon, is chargeable with a lien in favor of a material man, laborer, or contractor.157 23 Ill. 85; Clark v. Parker, 12 N. W. 553, 58 Iowa, 509; Goldheim v. Clark, 13 Atl. 363, 68 Md. 498; Atkins v. Little, 17 Minn. 342 (Gil. 320); Benjamin v. Wilson, 26 N. W. 725, 34 Minn. 517; Keller v. Denmead, 68 Pa. St. 449; Carson v. Boudinot, Fed. Cas. No. 2,462, 2 Wash. C. C. 33. But in New Jersey, under a law vesting the sole power to enforce mechanics' liens in a court which has no jurisdiction over equitable estates except to foreclose mortgages, it is held that the lien can only effect legal estates. Dalrymple v. Ramsey, 18 Atl. 105, 45 N. J. Eq. 494. 152 Turney V. Saunders, 4 Seam. (Ill.) 527. 153 Schwartz v. Saunders, 46 I. 18; Otis v. Cusack, 43 Barb. (N. Y.) 546; Hitchcock v. Kiely, 41 Conn. 611; Weller v. McNabb, 4 Sneed (Tenn.) 422. 154 Currier v. Cummings, 3 Atl. 174, 40 N. J. Eq. 145; Crowell v. Gilmore, 13 Cal. 54. In the former case it is held that it makes no difference that the lease has expired when the suit to foreclose the lien comes to trial. 155 Benjamin v. Wilson, 26 N. W. 725, 34 Minn. 517. 156 Crocker v. Currier, 27 N. W. 825, 65 Wis. 662. 157 King v. Smith, 44 N. W. 65, 42 Minn. 286; McGreary v. Osborne, 9 Cal. 119; Pierce v. Osborn. 19 Pac. 656, 40 Kan. 168; Jarvis-Conklin Mortgage Trust Co. v. Sutton, 26 Pac. 406, 46 Kan. 166; Meyer Bros. Drug Co. v. Brown, 26 Pac. 1019, 46 Kan. 543; Botsford v. Railroad Co., 41 Conn. 454. § 158. Mechanics' liens against an equitable estate survive or perish with it.158 They do not affect the holder of the legal estate,150 nor a purchaser from him.160 But the holder of a mechanic's lien upon an equitable interest in lands is entitled to be made a party to proceedings to extinguish the equitable title, and his lien is not affected by proceedings without notice to him.161 § 159. If the equitable owner afterward acquires the legal title, a mechanic's lien which has accrued against his equitable estate attaches immediately to the legal estate also.162 It is held in Kansas that one in open, undisputed possession of real property, who afterwards receives a conveyance of the legal title, has such a title as will enable him to create a mechanic's lien thereon, as against mortgagees and grantees; 163 and in Mississippi, under a statute making a mechanic's lien commence "at the time of making the contract," that if at that time the party contracting has no title to the land the lien will attach when a good title is acquired.164 But in Illinois, under a statute requiring the contract to be made with the owner, it is held that a mechanic's lien does not extend to land or lots not owned at the time by the party for whom the building or improvement was constructed, even though he is in possession of the lots, and afterward buys them.165 158 Campbell's Appeal, 36 Pa. St. 247. It has recently been held that one who furnished material and performed labor on a credit given to one in possession of property under an option to purchase was not, on that party's failure to avail himself of the option, entitled to a lien against the property, or against the owner thereof. Steel v. Mining Co. (Idaho) 42 Pac. 585. 159 Seitz v. Railroad Co., 16 Kan. 133; Conner v. Lewis, 16 Me. 268; Johnson v. Pike, 35 Me. 291; Bremen v. Foreman, 1 Ariz. 413. 160 Weaver v. Sheeler, 12 Atl. 558, 118 Pa. St. 634; Gault v. Deming, 3 Phila. (Pa.) 337. 161 Hallahan v. Herbert, 11 Abb. Prac. (N. S.) 326, 4 Daly (N. Y.) 209. 162 Lyon v. McGuffey, 4 Pa. St. 126; Weaver v. Sheeler, 17 Atl. 17, 124 Pa. St. 473; Wolfe v. Oxnard, 25 Atl. 806, 152 Pa. St. 623; Bilyeau v. Gaule, 1 Phila. (Pa.) 466; McGraw v. Godfrey, 56 N. Y. 610 (reported more fully in 16Abb. Prac [N. S.] 358); Hooker v. McGlone, 42 Conn. 95; Taylor v. Huck, 65 Tex. 238. But it would, of course, be subject to a purchase-money mortgage if there was one given. Campbell's Appeal, 36 Pa. St. 247. See ante, § 153. 163 Chicago Lumber Co. v. Fretz, 32 Pac. 908, 51 Kan. 134. 164 Bell v. Cooper, 26 Miss. 650, 27 Miss. 57. 165 Underhill v. Corwin, 15 Ill. 556. Trust Estates. § 160. Whether land, title to which is held by a trustee, is subject to mechanics' liens for improvements put upon it by him, depends upon the terms of the instrument creating the trust. A trustee who is authorized to build may incumber the estate with mechanics' liens, since the creation of such liens is a statutory incident of a building contract,166 and trustees to whom land is conveyed in trust, "to secure and pay over the profits above and beyond all necessary expenses," may create mechanics' liens for necessary repairs. 167 But a trustee authorized to collect the rents has no implied authority to make large and expensive improvements in excess of necessary repairs, and no mechanic's lien will lie therefor,168 and where title to church property stands in trustees, under a deed which declares that the "land is never to be sold, or to be used in any other way, only for the use of a church," the trustees cannot make a contract which will create a mechanic's lien on the property.169 A trustee holding title under a deed empowering him to sell or improve the same, "provided there shall be no lien, incumbrance, or charge created thereby on said premises," cannot make any contract for improvements under which a mechanic's lien can be created.17 170 It is held in California that a trustee who holds the legal title to land under a contract whereby he is to build a factory on the land, and then convey the whole property to the cestui que trust, is the "owner,” and not a contractor.171 One in whom stands 166 Taylor v. Gilsdorff, 74 Ill. 354. 167 Cheatham v. Rowland, 92 N. C. 340. 16% Herbert v. Herbert, 57 How. Prac. (N. Y.) 333. 169 Grissom v. Hill, 17 Ark. 483. 170 Franklin Sav. Bank v. Taylor, 23 N. E. 397, 131 Ill. 376. In this case it appeared that the record of this deed had been destroyed by fire, and that, after the lien accrued, the burned record was restored by a decree of court, which falsely recited that the trustee had power to incumber. It was held that these facts did not render the lien valid, since the record, though destroyed, was still notice when the lien accrued, and, as the restoration did not take place till after that time, credit could not have been extended by the mechanic on the faith of the false recital. 171 Hinckley v. Cracker Co., 27 Pac. 594, 91 Cal. 136. |