It has been uniformly held by this court, that a defendant who had sold his lots, and made an agreement to make further advances and accept a mortgage as security, after the purchaser should have erected buildings thereon, was not to be deemed an owner within the statutes authorizing mechanics’ liens, passed prior to 1851. And the court of appeals has affirmed our judgment, in the case of Loonie v. Hogan, (at the last term,) thus affirming that construction of those statutes. In accordance with what we deem the true principles of those decisions, the same construction has been given by us to the recent statute. (Laws of 1851, ch. 513.) Under that construction, how stands this case with the plaintiff ?
He did not prove that the work performed by him was done in conformity with any contract with the defendant. This was essential to his right to recover. He was, therefore, properly nonsuited, unless the evidence which he did offer would have tended to establish his case in this respect.. But the contract which he offered showed that the defendant was not the owner within the meaning of the law; therefore, that he must be nonsuited.
I think the evidence might have been received, and the nonsuit placed upon the authority of the cases above referred to; but as the result is the same, the judgment should be affirmed.
Judgment affirmed.