Opinion,
Me. Justice Williams:This was a scire facias sur mechanics’ lien. On the trial the court was asked to instruct the jury “ that there is no evi*639dence in the case to connect the hen in suit with the title of John Weaver, and in the absence of such evidence the plaintiff cannot recover.”
In response to this request the court instructed the jury that the lien was properly filed against John Weaver, “the testimony showing that he was the owner of the premises at the time the liens were filed, and therefore the point is disaffirmed.” This overlooked the question raised by the point. The evidence showed that the land on which these buildings were erected was owned at the time the materials were furnished by Knauer and Keim. Neall had made a verbal contract for the purchase of it some little time before, and paid ten dollars upon it. The materials were bought and the buildings erected by him in connection with the opening of a quarry thereon. Weaver purchased the title of Knauer and Keim after the materials were furnished, but 'before the lien was filed, and his present contention is, that the lien should have been filed against the equitable title under which the materials were contracted for, and not against the legal title. The point was well taken. As the case stood there was no evidence to show that Weaver held Neall’s equitable title, and unless he did, it is very plain that his legal title cannot be bound by this lien.
The lien commences when the materials are furnished, and attaches to an equitable interest in the premises: Keller v. Denmead & Son, 68 Pa. 449. If the materials are furnished at the instance of a tenant in common in possession, it has been held that a lien may be entered against him, and that it will bind his interest in the premises. In Woodward v. Wilson, 68 Pa. 208, it was held that where materials were furnished on the order of the husband, and a lien entered against him, the wife’s estate in the land — she claiming to be the real owner- — was not affected thereby. The statutes have now provided for the entry of a lien against structures erected by a tenant for years, but the lien binds only the tenant’s title. The mechanic must inquire not only after the title of the person on whose order he furnishes material, but after the incumbrances on that title at the time when the work begins, for his lien attaches only at and from the commencement of the building. The holder of a prior incumbrance is not affected. If *640the builder is the owner only of an equitable title, the holder of the legal title is not affected.
The object of the defendant’s point was to get the attention of the court upon this subject and secure a proper instruction to the jury. The court without sufficiently considering the question thus raised, told the jury that the lien was properly entered against the person who was the owner at the time when the lien was filed. This is entirely correct, if only it be added that such owner holds the title of the person or persons under whom the building was erected, but without such qualification it was clearly wrong. It may be that Weaver holds the title of Neall, but if so it was not shown on the part of the plaintiff, while defendant did show that he held the title of Knauer and Keim ; and upon this showing he was in a position to ask the instruction contained in his point.
The first assignment of error must also be sustained. The bills filed with the claim are not evidence in support of the plaintiff’s claim unless their correctness is not denied by the affidavit of defence. The bills in this case were disputed, and to admit the plaintiff’s statement of them on file, as evidence in support of his claim, was erroneous.
Judgment reversed, and venire facias de novo awarded.