It appears from the proof, that, in December, 1853, one Michael McCurday, or McCurday & Harvell, made a contract with the defendant Pike, for supplies for a vessel then building. On May 7, 1854, they gave him a mortgage on the vessel then in frames, and of the materials then on hand, to secure him for supplies furnished and to be furnished. On August 5, 1854, Thomas Sawyer sold McCurday about twelve thousand feet of plank for the deck of the ves*147sel. On September 15th following, and when only a portion of the deck plank had been used, Sawyer commenced a suit against McCurday for all the deck plank, claiming a lien therefor, and attaching the vessel to secure the same, for which the defendants gave their receipt to the present plaintiff, by whom the attachment was made. Sawyer prosecuted his suit to final judgment, which was rendered in his favor for the amount in suit. The execution was seasonably placed in an officer’s hands, and a demand duly made of the receiptors, who refused to give up the vessel.
This action is brought by the officer making the attachment, against the receiptors, one of whom, Pike, the mortgagee, denies Sawyer’s lien upon the vessel, and claims to hold the same under his mortgage.
“According to the doctrine in the Pandects, if one repairs his vessel with another’s materials, the property of the vessel remains in him.” “ The property in a vessel is supposed to follow the keel, proprietas totius navis carina causam sequitur.” 2 Kent, 360. The same doctrine seems to have been incorporated in and to be acknowledged as part of the common law. It is recognized in Merritt v. Johnson, 7 Johns. 473. It is fully affirmed in Glover v. Austin, 6 Pick. 214. The defendant Pike, having a valid mortgage, duly recorded, shows a good title against all but those having an elder or better title as lien claimants. Plis title, in point of time, is prior to that of Sawyer. The rights of the parties, therefore, depend upon the existing validity of Sawyer’s lien at the time judgment was rendered in his favor.
By the general maritime law, mechanics and material men have a lion on foreign vessels for the price of their labor and materials; but not on domestic vessels. To extend further protection to the laborer and the material man, the Revised Statutes of this State, c. 125, § 35, give to those who perform labor or furnish materials for or on account of any vessel building or undergoing repairs, “a lien on such vessel for his wages or materialsand this lien may be secured by an *148attachment of the vessel within four days “ after said vessel be launched or such repairs afterwards have been completed.”
In the case at bar, one of the builders of the vessel, upon which the lien is claimed, had purchased of the plaintiff for the vessel, a quantity of deck plank, which had been delivered. At the date of the suit by the vendor for the pi’ice of the plank sold, but a small portion had been used in the vessel. The whole amount sold had not entered into the structure of the vessel, till some two or three months after the commencement of the suit by which the lien was to be enforced.
It remains to ascertain the extent of the vendor’s lien at the time his suit to enforce it was commenced. Had Sawyer a lien at that time for all the plank sold, or only for those which had entered into and become a part of the vessel ? Had he a lien because of the expectation on his part that they would, and of the promise on the part of the builder that they should, enter into and become a portion of the vessel then building ? Did the lien attach instantly upon the sale, irrespective of any subsequent use or disposition of the plank ?
It must be remembered in cases of this description, that the controversy is not so much between the vendor and vendee, as between the vendor and the mortgagee or general owner of the vessel, to the prejudice of whose interests the lien is asserted. The builder of the vessel was liable for the lumber, whatever may be the use he may have made of it.- The judgment was rightfully rendered against him for the whole amount sold. Was the interest of the general owner liable for the same amount ?
The plank were sold for the vessel. They had not then been applied to the purpose for which they were purchased. They might never be. They might be sold or used in building other vessels. Their future use was problematical. If they were used for other vessels, or sold, would a lien attach ? It would certainly be a novel doctrine that a lien should attach for materials never used, because of an expectation that they would be used for a particular purpose.
*149The equity of a lien claim arises from the fact that the labor done, and the materials used, have increased the value of the thing upon which it has been done, and for which they have been used. The general owner, having been thus benefited, equitably holds his property subject to a lien for what by accession has vested in himself, and enhanced the value of his interest in that of which it has become a part.
The law follows and adopts this equity. The lien in rem attaches only to the extent of the labor done and the materials used; not for labor hereafter to be done, nor for materials hereafter to be applied. It cannot attach for labor which may never be performed, nor for materials which may never become a part of the vessel. Such was not the lien as to foreign vessels. That was only for labor done and materials used, and no more. The statute of this State was designed only to apply the maritime law to domestic vessels, for the same object and to the same extent. The Young Mechanic, 2 Curtis, 404; The Kearsage, 2 Curtis, 421; Phillips v. Wright, 5 Sandf. 342; The Hull of a new Ship, Daveis, 199.
It is apparent, therefore, that Sawyer sued and recovered judgment for materials for which, at the time he instituted his suit, he had no lien. If the mortgagee had wished to relieve the vessel from the attachment, he would have been obliged to pay for only such lumber as had then been used. The lien of the material man can only be enforced by attachment. It cannot be asserted prospectively. The extent of Sawyer’s lien was limited by the materials used, and not by those which might or might not be used. The judgment, therefore, manifestly embraces lumber for which a valid lien then existed, and lumber for which there was then no lien. In such case it has been repeatedly held that the lien is lost. Bicknell v. Trickey, 34 Maine, 273; McCrillis v. Wilson, 34 Maine, 286; Pearsons v. Tinker, 36 Maine, 384.
But a fatal objection to the plaintiff’s claim arises from the fact that the writ, by virtue of which the attachment was originally made, and the receipt taken, commanded only the attachment of the goods and estate of the debtor therein nam*150ed. There was nothing indicating a lien claim. The attachment, therefore, could give the plaintiff in that suit no special or peculiar rights, by reason of any materials he may have furnished toward the building of the vessel. He stands on the same footing as any other creditor, and his rights must be postponed to those of the mortgagee.
The practical difficulty, in cases of lien by statute, arises from the omission on the part of the Legislature to make.provision for notice to all persons interested, so that the judgment rendered shall be conclusive upon all. In admiralty, the process is in rem, and notice being given, the judgment binds the rights of all. Until provision is made for general notice, the judgment may conclude the parties to the suit, but it cannot bind others.
The attachment being subsequent in time to the mortgage, and the writ containing no command authorizing the officer specifically to attach the vessel, the rights of the mortgagee, as here presented, ar'e superior to those of the creditor in the suit in which the attachment was made, and a nonsuit must be entered. Plaintiff nonsuit.
Tenney, C. J., concurred in the result. Hathaway and Goodenow, J. J., concurred.