(dissenting). — The questions raised by demurrer in the court below, and which it is sought by appeal to have reviewed in this court, are elementary, and they were supposed to have been fully settled by well recognized authorities. The proceedings are in equity, and seek to enforce a mechanic’s lien against the interest of persons who are part owners to the legal title of certain real estate, for some improvements claimed to have been put on the property by one George H. Miles, who, it is alleged in the notice of lien (which is made part of the bill of complaint), was the lessee of the property sought to be charged in the lien. Yet it is not alleged that there was any express permission in the lease, authorizing him to make any such improvements. It is well settled that the lessee can not bind the interest of the lessor by a mechanic’s lien on the property without the lessor has, by some express act, made his estate liable. 15 Am. and Eng. Encyclopedia of Law, p. 165, and case therein cited. The only thing set forth in the bill of complaint, calculated to bind the owners, or to create a liability against them, is that they knew the improvements were being put upon the property, and this is not sufficient. It has thus been held where the lessee erects buildings on leased land in the absence of express permission in the lease, the owner failing to consent; and even his assisting in the erection of the building under the lessee did not constitute consent, within the meaning of the mechanics’ lien law, and no lien for labor or material attaches to the land. Havens v. Electric Light Co., 17 N. Y. Supp. (Sup.) 580. To the same effect is Williams v. Vanderbilt, 30 N. E. Rep. (Ill. Sup.) 458. Besides, in-this case, it affirmatively appears in the bill that the machinery, material, etc., put on the property by the lessee, George H. Miles, for which a claim is sought against the owners, was sold by him to one Perfecto Armijo. . It is therefore made to appear in the bill that they are not, and never were, the property of the owners of the building; that the materials furnished were mere trade addition interests, for temporary convenience, and removable by the tenant at his pleasure. Machinery placed by an electric light company in a building ■erected by them on leased land does not become a part of the realty, and may be removed by the creditor on ■execution. Havens v. Electric Light Co., supra.
There is another fatal defect to the bill raised by the demurrer, and that is defect of parties. "Where the law, as in this territory, only gives a lien against the legal interest or estate, the owner of the legal title is a necessary party. Phil. Mech. Liens, sec. 394; Peabody v. Society, 5 Allen, 540. The complaint sets forth who the owners of the legal title sought to be charged are, •and afterward complainants dismiss as to the infant heirs and guardian, leaving the case destitute of the necessary parties to obtain the relief sought. In such cases the general rule applies that he who is, at the time the suit is commenced, the owner of the building or structure upon which the lien is sought to be •enforced, is a necessary party defendant, without whose presence the lien can not be declared or enforced. Hughes v. Torgerson, 11 So. Rep. (Ala.) 209; 15 Am. and Eng. Encyclopedia of Law, 165, and cases there cited. Or, as stated in other cases: aSo, where a lien is sought to be enforced by filing a bill in chancery, a purchaser of the- property before or after the filing of the notice of lien, but before the commencement of the suit to enforce the same, is a necessary party to such suit. A proceeding without them would be a nullity.” Decker v. Myles, 4 Colo. 558; Marvin v. Taylor, 27 Ind. 73; Rice v. Hall, 41 Wis. 453; Lampson v. Brown, Id. 484; Green v. Sanford, 51 N. W. Rep. (Neb.) 967; Lowe v. Turner, 1 Idaho, 107. In Wright v. Cowie, 31 Pac. Rep. (Wash.) 878, it is held that the proceedings failed for the reason that the notice of lien showed that a person held a leasehold interest, and yet was not made a party to the suit, and it further holds that a mechanic’s lien can not be enforced against a part interest in the building.
In this ease the notice of lien and the bill of complaint show that part of the owners were infant heirs, wards of chancery, which would require an order of court to authorize their estate to be bound, and none is shown. The notice of lien in this case was not sufficient. The requirement of the statute as to notice in this territory is the same as in the state of Washington, both being taken from the state of California. The statute in this respect was construed by the supreme court of the state of Washington in the cases of Warren v. Quade, and Manufacturing Co. v. Wilson, 29 Pac. Rep. 827-829; and it is therein held: Where the goods, material, etc., were not furnished to the owners, directly, but were furnished to a firm or person named in the notice, in such case the statement of the terms and conditions of the contract should show that such relations existed between the person to whom they were furnished and the owners as would bring him within the list of those who, under the lien law, could, for the purpose thereof, bind the owners. In this case it can not be claimed that the notice of lien shows any such relation between Miles and the heirs as would authorize him to bind them. But, on the contrary, it sets forth in the notice that the claimant had no knowledge of the terms or conditions of the contract between George H. Miles and the owners of the premises. But it shows that he was their lessee, which precludes the power of his binding them by his contract for improvements, without such authority was expressly given in his lease, which is not shown. The case, therefore, not only comes under the rule in the Washington cases, which requires that the notice shall show that such a relation existed between the person to whom such material was furnished and the owners as, under the statute, as construed by the court, would bind them; but it .affirmatively appears in the notice that no such relation existed, by showing such a state of facts that it could not have been part of the terms and conditions of the contract, without further showing that such authority was delegated in his lease, which is not claimed. In the case of Warren v. Quade, supra, the case was reversed, and remanded to the court below, with instructions to dismiss the action. In the case of Manufacturing Co. v. Wilson, supra, the judgment of dismissal below was affirmed, for the reason that under the same statute the notices of lien were insufficient, and lacking in the same particular as this under consideration, except that in the case under consideration there are other material defects raised by the demurrer, some of which have already been referred to. The supreme court of Washington, in Heald v. Hodder, 32 Pac. Rep. 728, after a careful consideration, reaffirms the rule laid down in the above case, and gives additional reasons for the construction given the statute by that court. This case clearly illustrates the reason for the rule. When it is shown that the relation of the person to whom the material was furnished and the owners was that of lessee and lessors, it is clear that the lessee could only bind his leasehold interest, without the owners had lawfully authorized him to make the improvements; and the owners, in this case, as they were infants, could not do so without an order of court, which was not shown. The mere fact that one is in the lawful possession and control of lands does not give him authority to contract for the construction of buildings thereon, so as to give the contractor a mechanic’s lien thereon. Lumber Co. v. Wilson, 19 S. W. Rep. (Ark.) 974. The agent of the owner may subject the property of his principal to a mechanic’s lien for labor done or material furnished under a contract for building purposes, when shown he had authority to make such contract with the owner. Paulsen v. Manske, 24 Ill. App. 95; Id., 126 Ill. 72, 18 N. E. Rep. 275; Moore v. Jackson, 49 Cal. 109; The James H. Prentice, 36 Fed. Rep. 777; Baxter v. Hutchings, 49 Ill. 116; McDonell v. Dodge, 10 Wis. 106. See Redman v. Williamson, 2 Iowa, 488; Woodward v. Railway Co., 39 La. Ann. 566; 2 So. Rep. 413; Owens v. Northrup, 30 Wis. 482; Cornell v. Barney, 94 N. Y. 394; Scales v. Paine, 13 Neb. 521, 14 N. W. Rep. 522; Copeland v. Kehoe, 67 Ala. 594. But a special agent employed for a particular purpose only, and not connected with the subject of building, can not bind the building for labor or material, with a mechanic’s lien. McDonell v. Dodge, 10 Wis. 106; Proctor v. Tows, 115 Ill. 138, 3 N. E. Rep. 569. He might be in possession merely to take care of the property, or he might be an agent to rent it, or to sell the property; and in either event he would have no authority to contract for improvements upon it, and his contracts for that purpose would not bind the owner. Statutes authorizing mechanics’ liens are in derogation of the common law, and must be strictly construed. Hobbs v. Spiegelber g, 3 N. M. (Gil.) 361. As to the cases of E. J. Post & Company and A. E. Staehlin, they are subject to the same defects as the ease above considered, as to the insufficiency of notice and the defect of parties.