The first question which has been argued in this case is whether Stubbs had, by his contracts with Hayes and Carew, any authority to create a lien upon the estate which Nason then held in the land. We have no doubt that he had such authority. On January 10, 1889, Nason and Stubbs entered into an agreement1, dated December 28, 1888, by the terms of which Nason agreed to advance to Stubbs $9,000 for the purpose of building a house on a lot of land then owned by Nason. Stubbs was to begin the house on January 5, 1889, and Nason was to convey it to him when the foundations thereof were in, taking back a mortgage for the price of the land and the advances. The deed and mortgage were not delivered until February 15, 1889, and the contracts with the petitioners were made between the time the agreement was entered into and the delivery of the deed.
By implication Nason authorized Stubbs to employ the necessary workmen to build the house, and to procure the necessary materials; and the labor and materials thus contracted for were procured with the consent of Nason, within the Pub. Sts. c. 191, § 1. Hilton v. Merrill, 106 Mass. 528. Smith v. Norris, 120 Mass. 58. Worthen v. Cleaveland, 129. Mass. 570.
*552The case of Ettridge v. Bassett, 136 Mass. 314, upon which the respondent relies, is clearly distinguishable. In that case the agreement, the deed, and the mortgage took effect on the same day; and it was expressly found that, although there was a previous oral agreement between the parties, the person with whom the owner of the land made the agreement was not authorized to do any work upon the land until the land was conveyed.
The case of Perkins v. Davis, 120 Mass. 408, is also distinguishable. It was there held that, if an owner of land merely agrees to sell it, and allows the person who has agreed to buy to take possession, he does not thereby authorize such person to impose a lien on the land; and the case is carefully distinguished in the opinion from that of Hilton v. Merrill, ubi supra.
The Pub. Sts. c. 191, § 5, provide that “ The lien shall not avail or be of force against a mortgage actually existing and duly recorded prior to the date of the contract under which the lien is claimed.” It is the necessary implication of this section that the lien shall attach, and have priority over mortgages created after such a contract. Dunklee v. Crane, 103 Mass. 470. Batchelder v. Rand, 117 Mass. 176.
And, when labor is performed or materials are furnished under a contract made with the consent of the owner of the land, the lien takes priority of a mortgage made subsequently to the contract, although the labor is not performed or the materials furnished until after the making of the contract. Dunklee v. Crane, ubi supra, and cases cited.
The question remains whether the liens of the petitioners can be enforced, inasmuch as no notice was given to Nason. Section 3 of c. 191 provides that “No lien shall attach for materials furnished, unless the person furnishing the same before so doing gives notice in writing" to the owner of the property to be affected by the lien, if such owner is not the purchaser of such materials, that he intends to claim such lien.”
The mortgagee in this case derives his title through Nason. No materials were furnished by the petitioners until Nason ceased to be the owner of the land. Although the deed and mortgage were parts of the same transaction, so that Stubbs had only an instantaneous seisin, and could not by a contract sub*553sequently made impose a lien upon more than his interest in the land, yet Nason did not remain the owner of the land. Changing slightly the language of Mr. Justice Colburn in Ettridge v. Bassett, ubi supra, “ He was only a creditor holding a lien under the mortgage, and, since the mortgage was given, has never acquired any title except under it and its foreclosure. He could in no legal sense be held to be in the position of an owner.” If materials had been furnished while Nason was the owner of the land, he would undoubtedly have been entitled to notice. Ellenwood v. Burgess, 144 Mass. 534, 540. But as they were not furnished until Stubbs, the purchaser, became the owner, no notice to Nason was necessary. Whitford v. Newell, 2 Allen, 424. Gale v. Blaikie, 126 Mass. 274.
As no question is made as to the completion of his contract by Carew, a majority of the court is of opinion that he is entitled under the agreement of the parties to have his case sent to an assessor to assess his damages.
The case of Hayes differs in some respects from that of Carew. When he stopped work he had not fully completed his contract. Although the contract was for a round sum, he was to be paid as the work progressed, by instalments from time to time; and when he stopped work he had furnished work and material under his contract to an amount beyond his payments.
Under his contract, Hayes had the right to demand payment as his work progressed. Stubbs failed to perform his part of the contract; and we see no reason why Hayes is not entitled to enforce his lien for the work and materials furnished which have not been paid for. Both petitions, therefore, are to be sent to an assessor.
Ordered accordingly.
Justices Allen, Holmes, and Knowlton are of opinion that no lien can be claimed against Nason for materials furnished to Stubbs without notice to Nason, who was the owner when the contract was made; and that Nason’s -right is no less in this respect for the protection of his title after his conveyance of the property and his receipt of a mortgage back as a part of the same transaction.