Concurring. — From some of the arguments of counsel in support of the petition for rehearing, and in dissenting opinion of our brother, it would seem that they are laboring under the impression that in some way the majority opinion does the laboring man a great injustice. It will always be conceded that laws are enacted with the view of equal justice to all. Indeed, our civil and political liberties — our property rights — are founded on this rule. “Equal justice to all, special privileges to none,” should and does apply to capital and labor and to every avocation in this country of boasted freedom, independence, and justice. The mechanic’s lien law of this state furnishes ample protection for the laboring man, the materialman, the capitalist, and any and all who may furnish labor, money, or material for the erection or construction of a building in this state. There was no contractor in the erection of the building in controversy. Dr. Dubois, the owner, was constructing the building, employing the labor, buying the materials, and making settlement for such material and labor on his own contracts. After the building had progressed, and a large amount of labor and material had been employed and furnished, a mortgage was, given and recorded for the sum of $20,000 covering said building. It is not contended by counsel for appellant, nor would it be held by this court, that any and all labor done or materials furnished prior to the recording of the mortgage would not be a prior lien upon the premises. Subsequent to the recording of the mortgage all labor done or material furnished was with notice of the *350existence of the lien created by the mortgage, and the laboring men and materialmen were privileged to say to the owner of the building: “You have placed a mortgage lien in the sum of $20,000 on this property. We do not care to take chances on a lien for our labor or material, with the record fact of the existence of this mortgage. If you desire our labor or material, it will be necessary for you to pay for it as you get it.” If they eould not make satisfactory arrangements for their pay, they were certainly under no obligations to furnish the labor or material. It is more than probable that most, if not all, the proceeds of the mortgage were used in payment for work done and material furnished prior to its execution. In all reason the builder was under obligations to the mortgagee to pay up and cancel any liens or obligations prior to the mortgage, at least so far as the proceeds would go toward .making such payment.
If we were to accept the contention of counsel for some of the respondents as the law governing this case, it might, and we think would have, a disastrous effect on the upbuilding of our cities, towns, and villages. Money is absolutely necessary for building anywhere, and if security cannot be given until the building is completed and all liens cleared, it would in many cases be impossible to complete the work. We think the case at bar furnishes a good illustration of the evil effects of such a construction of our statute. Dr. Dubois did not have the ready money to complete this building. Work and labor could not be had without means to pay. Mortgages were given for the purpose of raising the money to complete the work of construction. If, after he had executed the two mortgages and placed them on record, materialmen and laborers did not think the building of sufficient value to pay the liens thus created, and them after satisfying such liens, then it was their privilege, as well as duty, to refuse to furnish material or perform labor without pay, or sufficient and satisfactory security that they would be paid. In that case, if the building would not sell for a sufficient amount to satisfy the mortgage liens, no one would suffer, excepting the mortgagor and mortgagee, as all *351claims for material and labor prior to tbe mortgages would be prior liens. If my conclusion is correct, and I think it certainly is, the law surrounds the laboring man with every safeguard. He is protected with a lien prior to the execution of the mortgage, and thereafter he need not perform labor without daily pay or satisfactory security.