delivered the opinion of the court, May 7th 1877.
This was a scire facias on a mechanics’ lien. The court ordered a nonsuit. The only question is whether the case should have been submitted to the jury.
The Act of 1836, which gave the mechanic or the materialman a lien, gave him execution of the building to which he had contributed his labor or materials, without regard to the quantum of the estate held by the contracting owner. It treated the estate bound by the lien as a fee. Hence it was held in Beckel v. James, 7 Watts 9, that a sale on a mechanic’s lien filed against a contractor, who had an equitable interest only in the land, divested not only -that equitable estate, but also the legal estate of the vendor. The Act of 1840 declared that the Act of 1836 should not be con*528strued to extend to any other or greater estate in the ground on which any building might be erected than that of the person in possession at the time of commencing said building at Avhose instance the same was erected. The Act of May 1861, Purd. Dig. 1028, pl. 20, extended the right of lien in Berks county to debts contracted for work done, or materials furnished, in the repair, alteration or addition to any house or other building. The claim, then, if filed within the time limited by the statute, had the effect of a lien as of the date of the commencement of the building or of making the repairs, alterations or additions. In other words, it binds the same estate in the land as a judgment Avould if entered at that time. If the person in possession at the commencement of the building or of the repairs, at Avhose instance the same was done, had any estate in the land, it bound that estate. Hence it was held in Van Billiard’s Adm’rs v. Nace et al., 1 Grant 233, that the recovery in a scire facias on a mechanic’s claim does not depend -upon the quantity of the defendant’s interest in the land. The claim is a lien on that interest only, and Avhen judgment is obtained, and execution issued, no more can be sold. It is true it was said in Bremmer v. Sheik, 9 W. & S. 119, on the authority of Siner v. Moore, not reported, that the possession of the person whose title is to be encumbered must be an actual and not a constructive one. I do not, hoAvever, understand that the estate of one Avko has constructive possession only is exempted from the lien, unless some other person is in the actual possession.
Referring to the evidence given in this case, it appears that the defendants Avere the unquestioned owners of the legal estate. If they were in possession that estate Avould be bound. We think the evidence most ample on that point to submit to .the .jury. The plaintiff testifies that he made the contract Avith the defendants only; that Avhile he understood they Avere officers of the Berks County Railroad, yet they told him they wanted this building to accommodate the Wilmington and Reading Railroad. When the plaintiff commenced Avork “ the building Avas a mere shed, open all around; no tracks were laid through the house then.” Clifton Sands also testified that he Avorkod on this building for Prutzman, and that there were no tracks running through the building, and no signs of a turn-table when he began the Avork. If the testimony be correct, no railroad company was using or occupying this building, and the work AA'as done under a contract with the oAvners of the legal title. The fact of its being understood that the building was designed for the use of some railroad company, but for which one does not clearly appear, did not take the possession from the owners of the land and contractors for the work. The eAddence in support of the plaintiff’s vieAY of the case was sufficient to have been submitted to the jury, and the learned judge erred in not taking off the nonsuit.
Judgment reversed, and a procedendo awarded.