By the Court
— Atwater, J.The Farmers’ Bank commenced an action in the District Court for the Fourth Judicial District for the foreclosure of a mortgage held by the Plaintiff against certain property of the Defendant Winslow, in St. Anthony, known as the Winslow House. The complaint alleges that the mortgage was executed on the 14th day of August, 1857, and was recorded in Hennepin county, (in which the property was situated,) on the 4th day of September, of the same year. In this suit, Hamilton, Brooks & Co. were made Defendants, with others, and interposed a defence, claiming a prior lien upon the premises. They allege that on the first day of August, 1857, they sold the Defendant Winslow, at Chicago, in the State of Illinois, a quantity of iron pipe, elbows, copper, marble, brass, and other fixtures and materials to be used in furnishing the Winslow House, of the value of $2,119 55-100, and that the Defendant put up said materials in and upon the said Winslow House, between the said first day of August and the last day of September, *921857. It was also alleged tbat they had commenced a suit against Winslow for the amount, claiming a lien upon the premises, and had prosecuted the same to judgment, and in which a lien was adjudged in favor of the Defendants upon the mortgaged premises.
The Plaintiff demurred to the answer, and the demurrer was overruled, and the Plaintiff sued out a Writ of Error. The only point raised is, which party has the prior lien ?
The statute of 1855, under which this lien attaches, {Session Laws of 1855, ¶. 58, see. 9,) provides .that a mechanic or material-man may have a lien upon the building, as therein specified, which lien shall take precedence of any other lien “which originated subsequent to the laying of stock or to the commencement of such house or other building.” This language indicates the time when the lien commences to attach, at least, whenever the question of time becomes material. That time is at “the laying of stock,” or, “the commencement of the house,” &c.
On fjhe 14th of August, when the mortgage to the Plaintiff' was executed and delivered, his lien attached to the premises as against all save bona fide purchasers for a valuable consideration without notice, and was made perfect as against all parties on the 4th of September, when recorded in the proper office. The facts stated in the complaint as to the time of the execution and record of the mortgage are not denied, and therefore stand admitted. In the view taken of this case, it is deemed unnecessary to determine whether, as against the Defendants in Error, the Plaintiffs’ lien attached in August or September. The Defendants having admitted a valid lien on the part of the Plaintiff, if they would avoid it, must show that it originated subsequent to their own. This we think the Defendant in Error has failed to do. They allege that the materials were sold by them to the Defendant Winslow on the 1st of August in Chicago. That they were placed in and upon the Winslow House previous to the first of October, or that the work was completed on the last of September. The language of the answer on this point is, that the Defendant “did perform work, labor and services from the first of *93August, 1857, up to aud until tbe last of September, 1857, in the erection and construction of the said Winslow House,” &c. But it is not stated that the stock was laid, or the work on the house commenced, previous to the 4th of September, 1857. From the language above quoted, it cannot certainly be meant that the Defendant in Error commenced putting the materials on the Winslow House on the first of August, for it was then in Chicago. If they actually performed any labor on that day, and for some time subsequent, on the material sold by them, it must have necessarily been performed in a neighboring State. They do not allege that the material was even in' this State previous to the 4th of September. To give their lien a precedence over that of the Plaintiffs, they must at least show that their material, either in part or whole, was on the mortgaged premises, or that they had commenced labor in some manner upon the premises previous to the record of the Plaintiffs’ mortgage.
When a party claims the benefit of the lien law, he must show that he has strictly complied with all the pre-requisites required by the statute, the aid of which he invokes. This statute creates an incumbrance without record notice, and however just and equitable may be its operation as between the owner and mechanic or material-man, care must be taken that it be not extended beyond its legitimate scope, to the prejudice of third parties, who have no means of knowing of the existence of such incumbrances, save such as the statute points out. These means are simply ocular examinations of the premises, in order to see if “stock has been laid,” or work and labor commenced. If this has not been done, he may safely conclude that no builder’s lien has attached. For it would often be productive of the greatest injustice, to hold that such liens related back to the time of making a contract where the stock was not laid at the place for the erection of the building, nor the labor performed, for days or months afterwards, as the case might be. For an intervening mortgage i security might there Dy be rendered totally worthless, although the record and personal examination showed the premises clear from incumbrance. Work and labor expended *94upon, or materials furnished for a building, cannot avoid as a lein, unless such building or such materials are upon the premises upon which it is sought to make the lien attach. In the case at bar, the Defendants having failed to show that their materials were on the premises before the Plaintiffs’ lien was perfected, the demurrer below should have been sustained. As however the Defendants may have a good defence, the case must be remanded to the District Court for the Fourth District, with leave to the Defendant to serve an amended answer within twenty days after service upon them or their attorneys, of a copy of this decision.