or improvement made or repaired on any land with the knowledge of the owner, or of any person claiming an interest, shall subject his interest to the lien, unless, within five days after he has learned of the erection, he shall give notice otherwise, but no lien shall be allowed as against a lessor for repairs made by the lessee, the lessor's interest is subject to liens for improvements, not repairs, made by his lessee, with his knowledge.180

§ 298.

Quasi Leases.

Sometimes liens arise in cases where the relation of the defendants to each other is analogous to that of landlord and tenant. Thus a contract whereby the owner of land leases the same for a period of five years, and the lessee stipulates to erect thereon, during the first year of the term, a building of the value of $3,000, the lessor covenanting, in addition to the annual value of the premises. (which is fixed at $300), to pay to the lessee, when the building shall have been completed, the sum of $1,500, although in one aspect an improvement lease, is, nevertheless, as to the mechanics and material men, a contract for the erection of the building, payable partly in money and partly out of the profits of the land; and the estate of the lessor is bound by the mechanics' liens. 181 In a case in Wisconsin it appeared that a contractor was employed to cut and saw lumber. He was to erect a sawmill on land furnished to him for five years by the owner of the timber, and the plaintiff furnished labor and material in the construction of the mill. It was held that the agreement did not create between the parties the technical relation of landlord and tenant, and that the plaintiff had a lien both on the mill and on the land.182 In another case one named as executor and devisee in a will, pending the settlement of the estate, signed an agreement to lease certain real estate belonging to the estate, part of the consideration for the lease being the making of certain improvements on the land, which were to become a part of the realty. The contemplated improvements were only partially completed, owing to the insolvency of the proposed lessees, and the lease was never

180 Congdon v. Cook, 56 N. W. 253, 55 Minn. 1.
181 Woodward v. Leily, 36 Pa. St. 437.
182 Cook v. Goodyear, 48 N. W. 860, 79 Wis. 606.

executed. On this state of facts the court held that the transaction did not constitute a lease, but a building contract, and that one who performed labor and furnished material in the making of such improvements under a contract with the lessees, was entitled to a lien upon the interest of such executor and devisee in the land, although the latter did not intend to incur a personal liability.183 Where a material man furnished materials to one in possession, under an agreement for a lease for 99 years, renewable forever, reserving a certain ground rent, relying upon that agreement, but the lease was afterwards made for a larger rent, and the reversionary interest conveyed to a purchaser for value, without notice of the previous agreement, it was held that the material man's lien was only upon the leasehold estate as created, and not upon the reversionary interest over and above the amount of rent originally agreed to be reserved.18 184

Tenants for Life.

§ 299. It has been held in Iowa that a tenant for life cannot create a mechanic's lien that will affect the reversionary estate,185 but in Pennsylvania the interest of a remainder-man in a building, or reversioner under a postnuptial marriage settlement, is bound by mechanic's lien for work done for the life tenant. 186

DIVISION VI. VENDOR AND VENDEE.

Vendee in Possession.

$ 300. Where land on which a mechanic's lien is claimed is the subject of an executory contract of sale, the relations of the vendor and the vendee towards the lien are somewhat analogous to those of lessor and lessee just considered. Mechanics' liens for work and materials furnished at the instance of a vendee in possession 187 under

183 Ness v. Wood, 44 N. W. 313, 42 Minn. 427; John Martin Lumber Co. v. Davidson, 44 N. W. 315, 42 Minn. 433. But such lien could not be enforced against the interest of a minor devisee, or that of an executor and devisee, who refused to sign the agreement for the lease. Id.

184 Gable v. Fund Soc., 59 Md. 455.

185 Conrad v. Starr, 50 Iowa, 470.

186 Savoy V. Jones, 2 Rawle (Pa.) 343.

18 It is essential that the vendee should be in possession (Mitchell Vance Co.

an executory contract of sale may be sustained on three different theories: First, that the vendee is the "owner" of the land; second, that he is the agent of the vendor; and, third, that he causes the improvements to be made with the vendor's consent.

Vendee as Owner.

§ 301. Whether the vendee is the "owner," within the meaning of the mechanic's lien acts, is a question on which the decisions do not agree.188 On the theory that he is the owner of an equitable estate, he has power to make contracts under which mechanics' liens may attach at least to his interest in the land.18 And when the contract is fulfilled by the delivery of a deed to the vendee before the lien is

v. Daiker [Com. Pl.] 19 N. Y. Supp. 378), and that such possession should be with the vendor's consent. Burlingim v. Warner, 58 N. W. 132, 39 Neb. 493; Cowen v. Paddock, 33 N. E. 154, 137 N. Y. 188.

188 The following cases hold that the vendee is the "owner": Paulsen v. Manske, 18 N. E. 275, 126 Ill. 72; Monroe v. West, 12 Iowa, 119; Stockwell v. Carpenter, 27 Iowa, 119; Carpenter v. Leonard, 5 Minn. 159 (Gil. 119); Jodd v. Duncan, 9 Mo. App. 417; Belmont v. Smith, 1 Duer (N. Y.) 675; Security Mortgage & Trust Co. v. Caruthers (Tex. Civ. App.) 32 S. W. 837; Cary-Lombard Co. v. Sheets (Utah) 37 Pac. 572.

The following cases hold that he is not the "owner": Brown v. Morison, 5 Ark. 217; Conner v. Lewis, 16 Me. 268; Johnson v. Pike, 35 Me. 291; Thaxter v. Williams, 14 Pick. (Mass.) 49; Metcalf v. Hunnewell, 1 Gray (Mass.) 297; Long Island Brick Co. v. Arnold, 28 Atl. 801, 18 R. I. 455.

In New York one statute declared that the vendor should be considered the owner until the deed was delivered (Rollin v. Cross, 45 N. Y. 766), and another act declared that a vendee in possession under a subsisting contract of sale was an owner. Mitchell Vance Co. v. Daiker (Com. Pl.) 19 N. Y. Supp. 378. It has been held that this latter act did not change the actual relation between vendor and vendee, or vary their legal rights as to each other or third persons, except for the purpose of the lien authorized by it. Schuyler v. Hayward, 67 N. Y. 253. 189 Bremen v. Foreman, 25 Pac. 539, 1 Ariz. 413; Hickox v. Greenwood, 94 Ill. 266; Henderson v. Connelly, 14 N. E. 1, 123 Ill. 98; Id., 23 Ill. App. 601; People's S., L. & B. Ass'n v. Spears, 17 N. E. 570, 115 Ind. 297; Monroe v. West, 12 Iowa, 119; Stockwell v. Carpenter, 27 Iowa, 119; Carpenter v. Leonard, 5 Minn. 159 (Gil. 119); Jodd v. Duncan, 9 Mo. App. 417; National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 13; Gaule v. Bilyeau, 25 Pa. St. 521; Carson v. Boudinot, Fed. Cas. No. 2,462, 2 Wash. C. C. 33: Charleston Lumber & Manuf'g Co. v. Brockmyer, 18 W. Va. 586; Kerrick v. Ruggles, 47 N. W. 437, 78 Wis. 274.

foreclosed, the lien extends to the fee, since the vendee's equitable estate is merged therein on his acquisition of complete title.100 But the vendor's title, while it remains in him, is not subject to mechanics' liens created by the vendee for improvements not authorized, either directly or indirectly, by the vendor. 191

Vendee as Vendor's Agent.

§ 302. If the vendee is the vendor's agent in the matter of improving the property according to the second theory above named, then

190 Carpenter v. Leonard, 5 Minn. 159 (Gil. 119); Brown v. Jones, 55 N. W. 54, 52 Minn. 484; Pike v. Scott, 60 N. H. 469; Rollin v. Cross, 45 N. Y. 766; Gaule v. Bilyeau, 25 Pa. St. 521; Schultze v. Brewing Co., 21 S. W. 60, 2 Tex. Civ. App. 236.

Under decisions that hold the vendee in possession not to be the owner, a subsequent conveyance to him does not cause liens for work theretofore done for him to attach to the land. Metcalf v. Hunnewell, 1 Gray (Mass.) 297; Thaxter v. Williams, 14 Pick. (Mass.) 49; Hayes v. Fessenden, 106 Mass. 228.

191 Brown v. Morison, 5 Ark. 217; Breman v. Foreman, 25 Pac. 539, 1 Ariz. 413; Worden v. Hammond, 37 Cal. 61; Hickox v. Greenwood, 94 Ill. 266; People's S., L. & B. Ass'n v. Spears, 17 N. E. 570, 115 Ind. 297; Harsh v. Morgan, 1 Kan. 293; Conner v. Lewis, 16 Me. 268; Johnson v. Pike, 35 Me. 291; Hayes v. Fessenden, 106 Mass. 228; English v. Foote, 8 Smedes & M. (Miss.) 444; National Bank of Metropolis v. Sprague, 20 N. J. Eq. 13; Craig v. Swinerton, 8 Hun (N. Y.) 144; Rossi v. MacKellar (Com. Pl.) 13 N. Y. Supp. 827; Dietrich v. Crabtree, 8 Wkly. Notes Cas. 418; Iliff v. Forssell, 34 Pac. 928, 7 Wash. 225; Charleston Lumber & Manuf'g Co. v. Brockmyer, 18 W. Va. 586.

In Pennsylvania it has been held that a vendee in possession could subject the fee to mechanics' liens. But this was under a statute which created such liens regardless of the title to the land, and which provided a remedy in rem for their enforcement. Bickel v. James, 7 Watts (Pa.) 9. And in Minnesota it is held that liens for improvements made by the vendee with the vendor's knowledge, and without objection by him, bind the fee under a statute providing that where improvements have been made upon real property with the knowledge of the owner, or of any person having or claiming an interest therein otherwise than as a bona fide prior mortgagee, incumbrancer, or lienor, they shall be held to have been made at the instance of the owner or person, unless within five days after obtaining his knowledge he shall give notice that his interest shall not be subject to any lien. John Martin Lumber Co. v. Howard, 52 N. W. 34, 49 Minn. 404; Wheaton v. Berg, 52 N. W. 926, 50 Minn. 525; McCausland v. Land Co., 53 N. W. 464, 51 Minn. 246.

the right of the mechanics to a lien on the fee is clear, since their claims are based on contracts with the owner of the land, the vendor, made through his agent, the vendee. Accordingly it has been held that, where the owners of a lot contract to sell a part of it, in consideration that the purchaser build a house on the part reserved, and authorize him to control the work, and pay the contractors, he is the agent of the owners so as to subject their portion of the property to the mechanic's lien.192 So, too, a vendee who repairs the property with the vendor's consent, and with the expectation of buying it, which he never does, has been held the vendor's agent in regard to the repairs. 193 And one who takes possession of a mine under an agreement for purchase which binds him to improve and develop it, is the agent of the vendor so far as such improvements and development are concerned.194

Improvements with Vendor's Consent.

§ 303. The third theory on which liens are created for work done at the instance of the vendee is that the vendor, the owner of the land, has consented to the work. Under statutes that give a lien where the work is done with the owner's consent, even though it is not done under contract with him, liens for improvements made by the vendee and consented to by the vendor bind the fee.195 It makes

192 Paulsen v. Manske, 18 N. E. 275, 126 Ill. 72. But, on the other hand, it is held in South Dakota that a stipulation in a contract for the sale of land that the vendee shall erect a building on the land does not constitute the vendee the agent of the vendor, within the meaning of the mechanic's lien law, nor authorize the vendee to subject the land to a lien for material furnished for a building contracted for by him. Pinkerton v. Le Beau, 54 N. W. 97, 3 S. D. 440. 193 Moore v. Jackson, 49 Cal. 109.

194 Eaman v. Bashford (Ariz.) 37 Pac. 24.

195 Weber v. Weatherby, 34 Md. 656; Hilton v. Merrill, 106 Mass. 528; Davis v. Humphrey, 112 Mass. 309; Smith v. Norris, 120 Mass. 58; Irish v. O'Hanlon, 52 N. W. 695, 34 Neb. 786; Leonard v. Cook (N. J. Ch.) 20 Atl. 855; Craig v. Swinerton, 8 Hun (N. Y.) 144; Garland v. Van Rensselaer, 24 N. Y. Supp. 781, 71 Hun, 2; Edwards & McCulloch Lumber Co. v. Mosher, 60 N. W. 264, 88 Wis. 672. But it is held in Indiana that mere "inactive consent" is not enough, and that, therefore, a mechanic's lien on real estate for improvements and re(295).