This cause has been before this court twice, and this is its third presence. It is reported in 61 Ga., 644, and in 63 Ga., 645. In the 61 Ga., it was held that the lien on the brick work alone, standing as part and parcel of the entire house, could not be enforced by execution and sale *670of that brick work, because it would disintegrate the entire building to take it away, and the purchaser could not otherwise be put in possession. It was hinted that there might be relief in equity.
x. A bill was accordingly filed, it was demurred to, and this court — in 63 Ga., 645 — held that the demurrer should have been sustained unless the bill was amended so as to allege the insolvency of Kries, the occupant of the tenement when the work was done and the apparent owner of it, and the ownership of the Gaskills. The legal effect of that decision is that at the time this brick work was completed this mechanic had a lien-on the work completed without regard to the title, and that the foreclosure of a lien on the whole premises in a proceeding against Kries was good and valid, so far as the improvements were concerned, no matter who held title, Kries being in possession and the apparent owner of the property.
It was ruled then that, though the lien was foreclosed as . against the true owner, Kries being so considered, and the whole of the premises, and though it afterwards turned out that he was not the real owner, and that the mechanic therefore had no lien on the entire premises, yet the foreclosure was good as to the improvements he made under the law then of force. Code of 1868, §1959, of 1861, §1971.
These points are res adjudicata, and the judgment then made is re-affirmed.
2. The plaintiff in error, however, seeks to take the case made on the proof without that ruling, inasmuch as he insists that Davis knew who were the true owners of the property all the while, and should have foreclosed against them within the year fixed as a limit by law. It is quite clear that he'lost his lien as against the whole property by not foreclosing against the true owners whether he knew or did not know who they were; but does he lose it against the improvements he made, though he knew who they were? Was he bound tr- go against them at all to fix the lien and *671foreclose it under the law as it then stood? He did not contract with them, and he foreclosed against the contractor. Had he foreclosed only as regards the improvements he made, this it would seem would be sufficient, and this court, in 63 Ga., held that the fact that he proceeded against all did not make him lose the part which his lien covered. The truth seems to be that Kries was a sort of purchaser. He held a lease for years with the right to purchase, and the mechanic might well have been confused in regard to ownership, and the proof of knowledge in him of title in the Gaskills is not conclusive at all. But we leave this point open. Did he know where the title was? and if so, foreclosing as against the whole property and true owner alone, does such knowledge as he had debar him of his equity because he did not declare against that true owner, or did not specifically assert his lien against the improvements, by virtue of the statute that he must assert the lien in twelve months ? In other words, does the statute requiring foreclosure in twelve months apply to Davis in this case against the Gaskills, because he knew they owned the property, and did not proceed against them, though he foreclosed not on improvements alone, but on the entire premises? Quere?
We incline to think that under the principles ruled in the 63d Ga., he does not lose his right, but we leave the point open.
3, 4. The case must go back on another point. The Gaskills are not bound by the judgment of foreclosure. They were not parties to it. They may, therefore, set up to this bill any defense Kries could have set up to the ■ proceeding to foreclose the lien against the improvements Davis had made, and the point that he was not entitled to any lien for such improvements because he was not a mechanic, goes to the core of the case, and if true would have concluded the attempt of Davis to foreclose for such improvements as against Kries, and therefore will also conclude his effort now to subject the Gaskills’ *672property to pay the debt as such a lien on that property.
It was thus material that the Gaskills be allowed to show that Davis was not a mechanic, and it seems to us that the case should have been continued to give them opportunity to prove the facts. That, however, is much in the discretion of the presiding judge, as all continuances are, and we put the grant not on this point alone but in connection with others
5. The verdict is wrong. It gives a lien on all the property, the entire premises; whereas the lien is confined to the improvements. If the house were burnt, under the verdict the lien would attach still to the land ; and although such accident is a conjecture — a mere contingency — yet it is not an unreasonable one. It is enough that the law fixes the lien on the improvements put on the house, and the verdict is contrary to law in that it spreads that lien over all the premises — tJie ground on which the house stands as well as the house.
6. The case was decided on demurrer in the 63d Ga,— and the facts seem to be somewhat variant from the allegations made in the bill and then before this court. The case now made is involved and intricate by reason of that variance, and though the court now adheres to the law as then ruled, we all think that the ends of justice would be advanced and attained more satisfactorily by another trial.
In regard to the question af solvency or insolvency of the Gaskills we do not see its materiality. This property is bound for the debt, if it be a lien ; and if they have millions outside or have nothing else but this, it cannot affect this issue. They are not bound to pay Davis, because they never contracted wit?h him ; this property, though theirs, is bound to pay him, because he improved it and the law gave him a lien on the improvements to secure him for making them, no matter who owned the property. Whatever in writing the opinion I may have *673said touching the materiality of their solvency — that of the Gaskills — on this issue — is now unsaid. It was dropped cúrrente calamo, and the same pen blots it out.
Judgment reversed.