If the mortgage given by Thomas J. Eochford to Winsor Gleason is entitled to priority over an entire contract for labor and materials made between the petitioner and the mortgagor, any lien arising out of the contract attached to the equity of redemption only, and not to an unincumbered fee.
At the date of the contract Gleason owned the land, and al*111though negotiations were pending with Thomas J. Rochford for its purchase, it is found by the auditor that any work done before the title passed was performed without his consent as owner of the land, nor does it appear that any notice was given to him of an intention to claim a lien for materials.
No lien therefore would have attached for labor already performed or furnished, or materials furnished, if any, before the negotiations, if they had not ripened into a sale. French v. Hussey, 159 Mass. 206.
It is not shown clearly how far the work had progressed at the date of the deed, but it may be inferred that the construction of the house from the date of the contract to its completion proceeded in the usual manner without substantial interruption.
If no rights in the property were involved except those arising between the petitioner and the respondent Rochford, then, as owner of the land when the house was finished, he could be found by his consent to the continuation of the work after the conveyance to have ratified what had preceded, and as the lien attached from day to day as the work was done, or materials were furnished, his i-atification would relate back to the beginning and embrace the whole amount. Courtemanche v. Blackstone Valley Street Railway, 170 Mass. 50, 53. Anderson v. Berg, 174 Mass. 404.
But against the mortgagee no lien attaches in such a case unless the contract out of which it springs is made after the mortgagor has become owner, for the legal title fixed by his ownership is the terminus from which incumbrancers, whether by way of a mortgage duly recorded or of a lien duly created, must reckon their rank to claims on the land. Courtemanche v. Blackstone Valley Street Railway, ubi supra. McDowell v. Rockwood, 182 Mass. 150, 154.
Before November 16, 1896, and until the delivery of the deed on that day the petitioner had no lien, or a contract which could result in a lien, for work or materials against Gleason the owner of the land.
By the transaction, when the title passed, Thomas J. Rochford is found to have gained only a momentary seisin of an unincumbered estate, which was immediately transformed into an equity *112of redemption by bis mortgage made to the grantor presumably to secure a part of the purchase money And as he made no contract with the petitioner after he became owner and before the mortgage was recorded, it retained priority over any lien that could grow out of their original agreement. Webster v. Campbell, 1 Allen, 318. Ettridge v. Bassett, 136 Mass. 314. Saunders v. Bennett, 160 Mass. 48. Sprague v. Brown, 178 Mass. 220, 224.
It is urged, however, by the petitioner that the decision made in Dixon v. Hyndman, 177 Mass. 506, supports his right as paramount.
The contract under which the lien was claimed in that case was made with the owners after they had received the title deed, and given a mortgage back, but before either had been recorded. Both the deed and mortgage were signed and acknowledged on April 29, 1897, again acknowledged on July 10, 1897, and recorded on July 12,1897. There was evidence that the occasion of the delay was that another mortgage given to raise money for purposes of construction should have priority over the original mortgage, but it was found by the referee who heard the case on the evidence, that the title deed had been delivered on April 29,1897, and the grantees were the owners of the land on which the lien was claimed on and after that date. The mortgage, though it had been delivered, was not recorded until after the date of the contract, and while it also was found that the petitioner knew of its existence before he furnished the materials for which he claimed a lien, it was held that actual notice was insufficient under the statute, and the lien outranked the unrecorded mortgage.
In the present case no contract was made after the respondent Rochford became the ■ owner, within the time elapsing between the delivery and recording of the mortgage, and none is implied against the mortgagee from the subsequent adoption of the work and ratification of the original contract. Courtemanche v. Blackstone Valley Street Railway and McDowell v. Rockwood, ubi supra.
Exceptions sustained.