Public Statutes, c. 141, s. 10 provides that "if a person shall, by himself or others, perform labor or furnish materials to *Page 341 the amount of fifteen dollars or more, for . . . repairing a house . . . by virtue of a contract with the owner thereof, he shall have a lien thereon and on any right of the owner to the lot of land on which the house" stands. As this section was construed, the lien given by it did not extend to materials provided for the erection or repair of a house unless and until they were used for that purpose. Kent v. Brown, 59 N.H. 236; Graton Knight Mfg. Co. v. Company, 69 N.H. 177; and in 1905 the legislature amended it by striking out "thereon" and inserting in its place "on any materials so furnished and on said house," so that the section as amended reads, "If any person shall, by himself or others, perform labor or furnish materials to the amount of fifteen dollars or more, for . . . repairing a house . . . by virtue of a contract with the owner thereof, he shall have a lien on any materials so furnished, and on said house . . . and on any right of the owner to the lot of land on which the house" stands. Laws 1905, c. 41.
The natural conclusion, when s. 10 as amended by c. 41 is read in the light of the construction the court had given the original section, is that it was the office of c. 41 or its purpose in the legislative scheme to give a mechanic or materialman a lien on materials furnished for the erection or repair of a house even though they have not become a part of the real estate at the time the attachment is made, as well as on the house itself and the land on which it stands.
The plaintiffs, however, contend that the office of c. 41 is to give the liens created by s. 10 a preference over mortgages made and recorded before the contract out of which the liens arise was made.
There is nothing in the language of the act or the circumstances under which it was enacted to sustain the plaintiffs' contention, and while some of the cases on which they rely (Grand Opera Co. v. McGuire, 14 Mont. 558; Land Mort. Bank v. Company, 89 Tex. 332; Wimberly v. Mayberry, 94 Ala. 240; Fidelity c. Co. v. Dennis, 93 Va. 504) may be authorities for the proposition that the legislature might have provided that the plaintiffs' liens should have a preference over the bank's mortgage, they have no tendency to prove that was what the legislature intended when it enacted c. 41.
In other words, the fact the statutes these courts were construing provide that a mechanic's lien shall be preferred to a prior mortgage has no tendency to prove that is what the legislature intended to do when it enacted c. 41.
The plaintiff also contends that the bank cannot "set up its mortgage against the plaintiffs," because it authorized them to make the *Page 342 improvements. It is enough in so far as this contention is concerned to say that the court instead of finding that the bank authorized the plaintiffs to make the improvements, has found that it "had nothing to do with the employment of either of the plaintiffs."
This brings us to the question of the time when the various liens attached. The bank's lien in so far as the plaintiffs are concerned, attached at the time the different sums were advanced to the Brittons, not at the time the mortgage was made or recorded. International Trust Co. v. Company, 70 N.H. 118; Sly v. Pattee 58 N.H. 102. The plaintiffs' liens attached at the time they began the execution of the contracts with the Brittons under which the work was done and the materials were furnished. That is, Virgin's lien attached August 9, 1916, and Morgan's October 21, 1916. Kendall v. Pickard, 67 N.H. 470; Cheshire Prov. Inst. v. Stone,52 N.H. 365.
At the time Virgin's lien attached, the bank had advanced $5400 on the mortgage. Consequently he could redeem from the bank by paying it that sum with interest from the date of the note, but for the fact that $900 of the money he has been paid came from the money advanced by the bank November 25, 1916. Consequently he must pay the bank that sum with interest as well as the $5400 in order redeem from the bank's mortgage.
Morgan made his contract with the Brittons, October 21, 1916, and at that time the bank had advanced $5600 on the mortgage. Consequently he must pay the bank that sum with interest from the date of the note together with the $900 paid to Virgin on the 25th of November, for Virgin's lien attached before Morgan's. Kendall v. Pickard, supra. The bank's lien, therefore, is to be preferred to Morgan's, not only as to the amount due on the mortgage when his lien attached, but also as to the money subsequently advanced by the bank in so far as it was used to satisfy Virgin's lien.
Case discharged.
All concurred. *Page 343