delivered the opinion of the Court. This process is founded on the St. 1819, c. 156, entitled, “an act securing to mechanics and "others payment for their labor and materials expended in erecting and repairing houses -and other buildings with their appurtenances.”
. The petitioner prays that the sale of a certain tract of land situated in South Boston, the property of one Henry Smith, may be ordered, in pursuance of the provisions of the statute. The petition alleges, that on the 4th day of March, 1826, a contract was made and executed by and between the petitioner on the one part, and Smith on the other part, for erecting on the land described in the petition, a dwelling-house and other buildings ; that in pursuance of the contract the petitioner had erected the buildings, and that a large sum is due to him for labor, and materials furnished, in completing the contract on his part ; and that he has a lien therefor on the land and buildings by virtue of the statute.
The respondent denies that any lien in favor of the pet"tioner has attached, because at the time of the contract with Smith he (Smith) had no title to the land ; and that after-wards, when he acquired a title, he parted with it immediate* ly, and that by such an instantaneous seisin no lien could by law attach.
A preliminary question was made by the counsel for the petitioner, as to the right of the respondent to become a par*53ty in this suit. The statute does not provide that any one should be notified of a petition for sale, except he is a lien creditor, or the owner of the land, .and the statute supposes undoubtedly that the owner of the land would always be one of the parties to the contract by which the lien was created ; but if he is not, there can be no good reason assigned . why the owner should not be allowed to become a party, and to stop the petitioner’s proceedings in limine to prevent unprofitable litigation. If the statute had been silent on the subject of notice, still the Court would not order a sale if it could be shown that the sale would be void in law ; and this may undoubtedly be shown by the owner of the land.
It was in the next place argued on the part of the petitioner, that the lien attached, whether Smith had any title to the land or not ; that naked possession was sufficient to enable him to create a lien ; but we think it is impossible o support this argument. The legislature have not the constitutional power thus to enable one person to violate the ight of property of another ; and if they had, it is quite clear that they did not intend to exercise any such power by the statute in question. It is obvious, as has been already remarked, that it is supposed, as appears by the language of the statute, that the person contracting to have buildings erected or repaired for him is to be the owner of the property, and not a mere tenant or intruder. In the first section it is provided, that where a contracting party had, before the contract for building or repairing, mortgaged the estate, the lien should attach to the equity of redemption : which would be a senseless provision on the construction of the statute contended for by the counsel for the petitioner.
So in the third section the owner of the property is to be notified, meaning thereby no doubt the person contracting for the. erection of buildings, or for repairs. It seems therefore clear, that it is not the intention of the statute to enable a man to create a lien on an estate in which he has no interest, but that the lien is to attach to and to be limited by the contracting party’s right and title in the land.
It is also clear, that in 1826 Smith was not the owner and •irapr'etor of the land on which the buildings have been erec *54ted. It is true he had contracted for the purchase of the land with the proprietors, (the South Boston Association,) had paid part of the purchase money and had a bond for a deed ; but he had no legal title to the land. If he had possession, he was a mere tenant at will. '
The remaining question is, whether the lien did not attach afterwards, when Smith received a deed from the South Boston Association ; and we are of opinion that it did not. Tho respondent, in his plea, avers that the conveyance from the South Boston Association to Smith, and his deed to Stamford, under whom the respondent claims, were made at the same time, and were parts of the same transaction. This averment is not traversed or denied by the petitioner. Smith therefore had a seisin only for an instant. He received and parted with the fee at the same time, and was but the instrument of conveyance to Stamford. To such an instantaneous seisin no lien could by law attach. This principle is fully established by Holbrook v. Finney, 4 Mass. R. 566, and Chickering v. Lovejoy et al., 13 Mass. R. 51, and indeed by numerous other decisions. There is therefore no ground on which this petition can be sustained.
Petition dismissed