dissenting. — Our statute, § 3018 of the Code •of 1886, provides that mechanics and material-men, “who shall do or perform any work or labor upon, or furnish any material, fixtures, . . for any building or improvement on land, or for repairing the same, under or by virtue of any contract with the owner or proprietor thereof, .... shall have a lien therefor on such building or improvement, and on the land on which the same is situated, to the extent in ownership of all the right, title and interest owned therein, by ■such owner or proprietor.” Section 3019: “Such lien, as to the land, shall have priority over all other liens, mortgages, or incumbrances, created subsequently to the commencement of the work, on the building or improvement, or repairs thereto; and, as to the building or improvement, it shall have priority over all other liens, mortgages or incumbrances, whether existing at the time of the commencement of such work, or subsequently created; and the person entitled to such lien may, where there is a prior lien, mortgage or incumbrance on the land, have it enforced by a sale of the building or improvement under the provisions of this chapter, and the purchaser may, within a reasonable time thereafter, remove the same.” Section 3021: “When a lien attaches under the preceding section [section 3020, which relates to buildings or improvements on land held under lease], the lessor, at any time before a sale of the property, shall have the right to discharge the same by paying to the holder the amount secured thereby.” The purpose of this section is to enable the lessor to prevent the removal of the building or improvement from the land, by paying off the lien upon it. - The foregoing are all the statutory provisions which are material to a correct decision of this case.
The facts of this case are all clearly shown in the pleadings, and in the agreed statement of facts. There is no dispute of fact about anything this court need decide.
*259R. M. Mulford occupied as a residence a lot adjoining the city of Birmingham, on which were a dwelling-house and other improvements necessary for its occupancy as a dwelling. Mulford had executed a mortgage on the lot, “together with all and singular the tenements, hereditaments and appurtenances thereto belonging,” to T. P. Wimberly, to secure the payment of a note of four thousand dollars, payable at a bank. The mortgage was executed in October, 1889, and was properly recorded in the probate office of Jefferson county, the county in which the lot is situated. At the time the mortgage was executed, Mulford was the owner of the property-in fee, and resided on it.
The dwelling was almost destroyed by fire in 1890, but the kitchen part of the dwelling was only partially consumed, and outhouses in the yard were left unharmed. At and before that time the property was under insurance for the benefit of Wimberly, the mortgagee; and when the amount of the loss was adjusted, in August, 1890, the sum of $2,664 was ascertained to be the amount of the loss suffered by the fire, and this was paid by the insurance company. It was then agreed between .Wimberly and Mulford that the said insurance money should be expended in restoring the dwelling-house to a habitable condition; the house, when restored, to still continue under the mortgage; and if any sum beyond the $2,664 was expended on the building, Mulford was to supply it, and was to continue in the occupancy of the house, subject to the mortgage. Under this agreement the house was rebuilt on the site of the one burned, and the $2,664 were exhausted in the erection. The house not being completed, or not being finished up to the satisfaction of Mulford, he incurred additional expense in material and workmanship which went into the body of the house. The debt thus incurred is some $600. This additional expense was incurred on credit, without the knowledge or consent of Wimberly, and the act has never been ratified by him. It is not shown that he even knew that the expense being incurred was in excess of the $2,664. The verified statement of materials and workmanship required under sections 3022-3-4 of the Code, was made out against R. M. Mulford, without any notice whatever of Wimberly’s claim or mortgage.
The mechanics who did the work, having acquired the ownership of the material-men’s claim, filed the present bill to enforce both claims by a sale of the property on which the house was erected — properly, in the present case, on which the house was repaired or completed. The bill was filed January 29, 1S91, and sets forth that Mulford was a citizen *260of Jefferson county — the county in which the property is situated — and that Wimberly resided in Lee county, a hundred miles or more away. While the suit was pending, and after Wimberly had answered the bill, to-wit, on March 28, 1891, he sold the property under the power of sale contained in the mortgage, having previously given the requisite notice, and one Hyde was set down as the purchaser at $4,910.41, the amount of the mortgage debt, and the expense of the foreclosure. A deed was made to Hyde, and on the same day the property was reconveyed by Hyde to Wimberly. No money was paid, and it was practically a purchase by Wimberly at his own sale. The mortgage gives to the mortgagee no right to purchase at his own sale.
There are two reasons why the sale under the power can exert no influence in this case. First, when the bill was filed — January 29, 1891 — no attempt to foreclose the mortgage by sale under the power had been made. If the bill, when filed, contained no equity, the subsequent act of Wimberly can not give it equity. To authorize a suit in chancery for relief, the facts on which complainant relies for recovery must be existent. It is not enough that they come into •existence afterwards. — P. & M. Mut. Ins. Co. v. Selma Sav. Bank, 63 Ala. 585 ; Rapier v. Gulf City Paper Co., 64 Ala. 330; Banks v. Thompson, 75 Ala. 531; Malone v. Marriott, 64 Ala. 486; Peevey v. Cabaniss, 70 Ala.; 3 Brick. Dig. 679. ■Second, Wimberly for all equitable purposes being the purchaser at his own sale, the sale and.conveyances made did not in the slightest degree impair or change the equitable rights, ■or the manner of their assertion, that any third person may have had. Subsequent incumbrancers had precisely the same •equitable rights after the said sale, as they could have asserted ¡before.
The statute under consideration does not attempt to secure to mechanics or material-men a lien paramount to older valid liens. If it did so attempt, we would be forced to deny such relief, for the attempt would be to deprive the owner of his property without “due process of law.” The lien the statute confers is only “to the extent in ownership of all the right, title and interest owned therein by such owner or proprietor.” That is, the one who procures the materials to be furnished, or the mechanic’s labor to be performed, thereby gives a lien co-extensive with his ownership, and no more. If he have only a leasehold estate, a part interest lesss than the whole, an equity of redemption, or an equitible right to demand or receive title on payment of the purchase-money, the mechanic or material-man acquires a lien on that title or right, and *261nothing more. He does not, and can not, acquire a larger right or interest than his employer owned. It is axiomatic, that no one can convey or incumber property beyond the extent'of his ownership. I understand Justice Coleman, in his opinion, to concede what is stated above.'
If the employer (owner or proprietor, as he is designated in the statute) own the unincumbered fee, then no difficulty will be encountered in enforcing the lien. The statute gives a lien, not only on the building or improvement erected, or added to or repaired, but also on the lot on which it stands. The entire property, lot and all, if necessary, can be sold in discharge of the lien, even though that lien be only for repairs put on the building. Such is the statute.
If, however, the owner or proprietor, procuring the work to be done, or materials furnished, has not an unincumbered title to the lot, then the statute provides a different rule. If the workmanship and materials are employed in the erection of a new building or improvement, which can be removed, and leave the property as it was before the building or improvement was commenced, then there is a first añd paramount lien on the building or improvement, which can be enforced by a sale of such building or improvement, “and the purchaser may, within a reasonable time thereafter, remove the same.” And, in such case, the mechanic and material-man each has an additional lien on whatever title to, or interest in the lot, the owner or proprietor owned at the time the lien commenced to attach. In the two categories stated above, the rights and remedies of the several parties are clearly defined in the statute, and are easy of enforcement.
Cases arise in which the claim of the mechanic or material-man is for labor done or miferials furnished for the completion of an unfinished building or improvement, or for repairs on such building or improvement, at a time when the fee-simple title is not- in the person who procures the materials to be furnished, or the services to be í’endered, and' yet both the material and services become so incorporated in the building as not to be separable from it, so as to leave it in the condition it was in before the repairs were made. That is this case. It is manifest that neither a sale of the entire property, nor of the building on which the repairs were put, nor a removal of the building, can be resorted to in such case. Either course would deprive the older lienee, the mortgagee, of his property, without due process of law. It results, that for the case we have in hand the statute points out no specific mode ■of enforcing the lien. It must, therefore, be determined on equitable principles.
*262The claim of a mechanic or material-man is at last but a lien — a right to have the claim enforced as a charge. The statute makes it subordinate to all older valid liens; and if it did not, the constitutional barrier would have made it so. Magna Charta made it so. Except to the extent the statute provides specially for its' enforcement, it stands on no higher plane than.other valid liens; and we have seen there is no statutory provision which points out the remedy in a case like this. We have simply the case of a junior lienee attempting to collect his claim out of property that is subject to an older valid lien. In the opinion of my brother Coleman it is admitted that Wimberly’s claim is the older, and its Iona fieles is not questioned. Suppose the complainants in this case filled the position of a junior mortgagee, and, to make the analogy striking, suppose the consideration of such junior mortgage had been for money- which was expended in repairs on the house covered by the senior mortgage; or, suppose the case of a vendor’s lien for unpaid purchase-money, no title being made, and a mechanic asserting a lien against the vendee in possession for repairs put upon and incorporated in a dwelling that was on the premises before the agreement of sale. Can ingenuity draw a distinction in principle between either of the cases supposed and' the case we have in hand ? And would any one contend, in either of the cases supposed, that, any other principle was involved than that which always obtains when there is a junior and a senior mortgagee ?
I hold the following propositions are so clearly established, that not a respectable authority can be found in opposition to either of them : First, the mortgage to Wimberly being duly spread on the records of the county in which the lot was situated, and that mortgage being the older lien, this, in law, was and is the equivalent of actual notice to the mechanic and material-man of the existence of that older lien. — 3 Brick. Dig., p. 679, §§ 8, 9. Second, the complainants in this case, being only subsequent incumbrancers, had no right, either at law or in equity, to compel that older mortgagee to enforce his lien, either by foreclosure or otherwise, in order that their junior interests might be carved out of it. Their only right, like that of any other junior incumbrancer, was to redeem the property from the older lienee, and thereby secure their subrogation to his rights. — Kelly v. Longshore, 78 Ala. 203, and authorities cited. Third, there is not an adjudged case, not even including those cited by my brother Coleman, which holds that a junior incumbrancer, although his labor or money may have enhanced the value of the security, can coerce the *263enforcement of the lien, as a means of carving his alleged interest or lien out of it, unless there is a-statute-conferring the right.
Our statute giving to mechanics and material-men a lien was approved March 6,1876. Before that time we had no statute on the subject, that was like the present one. — Code of 1867, §§ 3101-4. Its provisions, so far as the principles necessary to be decided in this case are concerned, are identical with those of the Code of Iowa, §§ 2130, 2139, 2140, 2141. The Iowa Code was adopted in 1873, three years before our statute was enacted. The complete identity of language found in each of the systems, on the points material to this case, demonstrates that our statute, being the later, must have been copied from the Iowa statute. Such identity of expression could not be accidental.
The substantial re-enactment of a statute which has been construed, and has acquired a fixed judicial construction, is a legislative adoption of that construction. — 3 Brick. Dig. 749, § 16. Seven of our decisions are cited in favor of this principle. Getchell v. Allen, 34 Iowa, 559, was decided in 1872, four years before our statute was enacted. The Iowa statute was of 'force before that time. — Iowa Code of 1851, §§ 981, et seq. The Iowa case was not distinguishable in purpose or principle from the one we have in hand. The court said : “In the case of a mortgage upon land and the buildings thereon, made before the mechanic’s lien attaches, the mortgagee will hold the property as against the mechanic. How is it when improvements in the way of additions of repairs to the building are made after such mortgage ? The mortgage binds the house; the improvements of the character indicated become a part of the house, and are, as it were, incorporated with it. After the improvements are made, they do not remain separate and distinct from the building. They have lost their distinctive character; the house includes them, they are a part of the house; the mechanic’s lien can not defeat the mortgagee’s right. And for the same reason, section 1855 does not apply to such a case. That section simply provides, that a mechanic’s lien tor work or materials furnished to erect buildings, after the execution of a mortgage on the land, is a paramount lien against the buildings, but is not a lien on the land. But, if the mortgage covers the building, the mechanic can not enforce his lien against it, and cause it to be sold and separated from the land. These views, we think, are based upon sound principles, and lead to equitable results. Should a contrary doctrine prevail, it would be within the power of a mortgagor to ruin the security of this creditor, by making im*264provements upon the building covered by the mortgage, which, in fact and in law,, would but become a part of the building itself. The case before us serves to illustrate the injustice of such a rule. Another story is added to a house, already bound by the mortgage. The story can not be separated from the house; it is a part of it. It would be a great hardship to the mortgagee to permit his security to be defeated or impaired by the act of the mortgagor, in thus adding to his building. The mechanic or material-man can not complain. He had notice of the mortgage, and knew, or was bound to know, the purposes for which the materials were furnished, or work was done by him.”
The language copied is taken entirely from Chief-Justice Beck’s opinion, on a statute from which ours was in substance copied, and in a case from which ours is not distinguishable in principle. Is there any hitch, or faulty link in the reasoning of Chief-J ustice Beck ? Can it be answered ?
As I understand the opinion of my brother Coleman, he concedes that Wimberly’s mortgage has an older and paramount lien. And he does not contend that the mechanic or material-man can claim a lien for the value or agreed price of the materials and work put into the house. Their lien extends, according to his views, only to the enhancement of price caused thereby, which the house and other property covered by the mortgage will bring, when put to sale. Now, how is this to be ascertained ? The house must needs be sold as an entirety, and hence the sale will furnish no data for determining the enhancement of price. Is it to be ascertained by a reference, and on opinion evidence? Is it just toa paramount lienee — nay, is it lawful — to carve out of his security a junior incumbrance, placed there without his consent, and to fix its value or amount on testimony such as this? The statute gives a lien — junior lien — for the value of the materials and mechanical labor, and it gives it for the whole value. It gives it in no other form. In a case like this, that lien is on the equity of redemption; Mulford’s ownership of the property. On what principle can that lien be transformed into a lien on the whole property, for the enhanced value imparted to it by the material and workmanship furnished, and that lien made enforceable pari passu with the older mortgage lien ? The statute confers no such lien, and provides no machinery for carving it out. No adjudged case can be found which justifies such proceeding under a statute like ours. The Illinois cases cited by my brother Coleman are rested on the express language of their statute, which directs in what manner the lien for repairs must be *265enforced. That court simply followed the statute of that State. We have no such statute, and yet the majority opinion of my brothers supplies the omitted clause, and construes our statute as if it were a copy of the Illinois statute.
An additional argument: When an entirely new building or improvement is erected at the instance of the mortgagor, on land previously mortgaged by him, the statute declares a lien in favor of the mechanic and material-man, and the extent of it. It is on the building or improvement so erected, which may be sold and removed from the premises. This is the remedy given by statute, and it gives no other, except a lien on the mortgagor’s equity of redemption. It is manifest that the lien on the building, with the right to sell and remove it, would in most cases be very inadequate security. All men know that the sale of a building — even of a frame building — if the purchaser be required to remove it from the premises, would yield only a fraction of the value of the materials and workmanship employed in its construction. And if the building were of brick, this disparity would be much greater. Yet it is manifest that in case of an entirely new building on land previously mortgaged, sale and removal would be the only means of enforcing the lien of the mechanic and'material man. This, because this statute, which secures the lien, gives this remedy for its enforcement.
Now, under the opinion of the majority of the court, the right and remedy for repairs put on a building which was on the premises at the date of the mortgage, would be much more compensating — much more nearly adequate — than if the claim were for an improvement entirely new. Can the legislature have intended this advantage to him who only repairs an old building, over the material-man and mechanic who furnish materials and construct a new one ? Did the legislature intend to give to the builder this inadequate compensation for an improvement entirely new, and leave it to the courts to secure to the repairer, by interpretation, a full quantum valebat for what he may have added ?
The present proceeding is in equity. The¡ very nature of the relief granted in the majority opinion in this case forbids that it shall, or can be awarded, in any court other than one having chancery jurisdiction. Liens secured to mechanics and material-men under our statutes are enforceable in equity, only “when the amount claimed is not less than one hundred dollars,” unless a special ground of equity jurisdiction is alleged and proved. — Code of 1886, § 3018. I have shown that the complainant is without semblance of equitable right to compel Wimberly to foreclose his mortgage, and have thus *266shown that the present bill is without “special groun'd of equitable jurisdiction.” Can it be that the legislature intended to grant the special relief my brothers have awarded to complainant in this case, when the value of repairs amounts to one hundred dollars or upwards, and to withhold it when it falls below that sum? Would there be any justice in such discrimination? We presume the legislature intended to deal equally and fairly, and hence should not, by interpretation, stretch this purely statutory, yet beneficial system, to consequences the legislature did not express, and could not have intended.
I summarize my own conclusions: First, at the time when the materials and Workmanship were furnished in this case, Wimberly’s mortgage was on record. This, in law, was the same as if the material-man had had actual notice of the mortgage, and that Mulford’s ownership was only an equity of redemption. Second, the material-man and mechanic each acquired a lien, but it was inferior to Wimberly’s lien, and bound only Mulford’s equity of redemption. Third, the only remedy or recourse left to .the material-man and mechanic was the right to redeem from Wimberly by paying off the older incumbrance, and then enforcing the collective liens for their benefit; or, they could have enforced their claim against Mulford’s equity of redemption; or they could await Wimberly’s foreclosure, and claim payment, of the surplus, should anything be left.
It is my conclusion, that the decree' in this case should be reversed, and the bill dismissed.
Clopton, J., concurs in this opinion.