(dissenting). This cause was commenced in the Circuit Court of the County of Morris, to enforce a mechanic’s lien against Derrickson, as builder, and Seymour and Sage, as owners of the premises. On the trial, a *66verdict was taken by consent for the amount of the plaintiffs’ claim, with interest. All the questions of law that arose upon the trial are certified for the advisory opinion of this court.
Most of the questions certified arise upon the construction of the act of the eleventh of March, 1853, Nixon's Dig. 487. In the examination of these questions, much aid has been derived from the full and elaborate brief of the plaintiffs’ counsel. The principles there insisted on as applicable to the construction of the statute cannot be controverted, The act in question, like every other remedial statute, is to receive not a strict, but a liberal construction. The intention of the legislature is to be ascertained and carried into effect, so far as it can be done consistently with sound and well -settled rules of interpretation ; at the same time care is to be taken lest, from a desire to effect any real or supposed beneficent purpose of the act, the court exceed the just bounds of interpretation, and legislate rather than interpret. The first lien law of the state, passed in 1820, was so anomalous in its character and so defective in its provisions that its efficient execution was found impracticable after years of experience. The opinion was early expressed, by the most eminent counsel at the bar, that its provisions never could be executed or rendered practically available except by the aid of a court of equity. The great difficult of carrying it into execution by fair judicial construction was felt and expressed upon the bench. Sherer v. Nichols, 1 Harr. 184. And the court, in the construction both of the former and present law, have been constantly pressed with the necessity of either defeating the design of the act or of extending the rules of construction beyond their legitimate limits. The duty of the court, in regard to this and all similar acts of legislation, is clearly to carry into effect the intention of the legislature, and to execute the provisions of the law, as far as it is practicable, by sound interpretation without judicial legislation. The law is to *67be beneficially and liberally construed, not argumentatively extended.
Upon these principles, the questions certified for the opinion of this court are to be considered and answered.
1. Had the plaintiffs a right to appropriate the payment made by -Derrickson to the first items of their account, which had lost their lien by lapse of' time ?
The general rule, acknowledged in all the cases, is that where the debtor, owing several debts to the same creditor, omits to apply the payment, at or before the time of making it, the creditor may make the appropriation. Smith v. Wood, Saxton 80; White v. Trumbull, 3 Green 314; Mayor, &c., v. Patten, 4 Cranch 320; 1 Amer. Leading Cases (1st ed.) 141. The right of appropriation is not taken away or impaired by any express provision of the lien law, nor by the effect of the appropriation upon the interests of the land owner.
2. Were the declarations of Derrickson, the builder, competent to prove what the building contract between himself and the plaintiffs was ?
Derrickson is a party to the record. The action is brought against the builder and the owner of the land. It has a twofold purpose—to recover judgment for the debt against the builder, and to enforce the lien against the land and building. The .pleadings put in issue the existence of the debt and ilie ■ validity of the lien. As against the builder, his declarations are clearly competent. The court were called upon to reject, not to apply the evi-’ donee. In the case of Dickinson College v. Church, 1 Watts & Serg. 465, it was held, by the Supreme Court of Pennsylvania, that in a proceeding by scire facials under the statute of that state against the owner and contractor, for the sole purpose of enforcing the lien against the land, that the declarations of the contractor as to the amount of indebtedness were admissible in evidence.
The declaration; of Derrickson were admissible upon mother ground. At the time they were made he was *68the owner of the land upon which the lien# attached. It was in fact an admission by the owner of the land of the existence of a contract which became, in its execution, an encumbrance upon the land before it passed into the hands of the defendants.
3. Is the lien 'impaired because it appears in evidence ’ that a part of the labor was done and a part of the materials furnished more than a year before the filing of the lien claim ?
Under the provisions of the lien law of 1816, it was held, that if the claim was filed within six months after the date of ■ the last item, in a continuous bill for work done or materials furnished, the lien was valid for the whole bill. The 12th section of the existing law prohibits this construction, by requiring that “ such part of any claim filed as may be for work or materials furnished more than one year before the filing of the same, shall not be recovered against the building. or land by virtue of this act.” The provision seems not to be applicable where the work is done by contract. The contract is an entirety. The work cannot be said to be done, nor the materials furnished, until the contract is executed. This is certainly true where the entire contract price is payable at the conclusion of the work. In such ease no lien can be filed until the contract is completed and the debt due. And even where the money is payable by instalments, as in the case now under consideration, it will be found difficult'to apply the provisions of the 12th section. Where the payment of the instalments are made to depend upon the amount of work done and materials furnished, and are apportioned to the value of such work and materials, the claim might show what part was furnished more than a year before the filing of the claim. But where the instalments are payable at fixed times, without any reference to the amount of work or materials furnished, the amount of the instalment furnishes no evidence of ■ the amount of work or materials furnished. If the whole *69contract price were payable in advance the lien need not be filed till the contract is complete. But if it be admitted that, by the true construction of the 12th. section, it jdoes apply to contract work payable by instalments, tbe right of the plaintiffs’ lien is not impaired. The amount of tbe instalment payable during tbe progress of tbe work is more than satisfied by tbe payments made. Tbe amount claimed by way of lien is less than the sum due and payable upon the completion of the work.
4. Is the claim invalid because it does not state with sufficient particularity the time and times of doing the work and furnishing the materials ?
The bill of particulars states tbe claim as follows : “February 25, 1857, to building water wheel, flume, and breast shaft, and furnishing materials (except the water wheel shaft), done by special contract for four thousand dollars, the said Edwards and Clark to have the old wheel, and Derrickson to find the new water wheel and shaft, $4000.”
The act provides that the “ statement, when the work or materials, or both, are furnished by contract, need not state the particulars of such labor or materials furfchci than by stating generally that certain work therein stated was done by contract at a price mentioned.” Nixon’s Dig. 488, § 6, Art. IV. The claim itself, and the oath of the claimant by which it is verified, are in strict compliance with the requirements of the statute. The work done, the time it was executed, that it was done by contract, and the price stipulated, are all clearly stated in the claim and accompanying affidavit.
5. Does the claim for work and materials furnished in the construction of the flume of the mill constitute a lien within the purview of the act? The flume, by which tbe water is conveyed upon tbe wheel, may be, and often is principally within tbe building, is connected with it, and constitutes as much a part of the mill as the wheel itself ; it is sometimes, when the wheel is outside of the build*70ing, totally disconnected with the mill, and strictly is no more a part of the mill than an ordinary raceway which conducts the water from the dam to the building. Whether, in the latter case, the wort and materials for its construction would constitute a lien, may perhaps be doubted. It would seem to be no more a part of the mill than the dam or a raceway, for which it may be a mere substitute. In Sherer and Nichols v. Collins, 2 Harr. 183, Chief Justice Hornblower said, “ if the mill and race were all one entire erection, and put up at the same time, I do not see why, upon a liberal construction of the statute, considering it as a remedial- one, the mill and lands should not be bound for excavating and walling up the raceway, as a part and parcel of the mill. But upon this point I do not give any definite opinion.” In the present case the flume is described, by a witness, as being from sixty to one hundred feet in length, of wood, about six feet wide and four feet high, framed and open, without a top. The wheel is within the mill. The flume runs into the mill, but all of it, except a few feet, is outside of the mill. This description of the structure brings the claim for its erection clearly within the spirit of the act and within the letter of the fifth section,, by which it is enacted, that any addition erected to a former building, and any fixed ma. chinery or gearing, or other fixtures for manufacturing purposes, shall be considered a building for the purposes of this act.
6. Is the lien void by reason of the claim including more land in its description than is properly the subject of the lien ?
The act declares that the claim for labor performed and materials furnished for the erection and construction of a building “ shall be alien on such building, and on the land whereon it stands, including the lot or curtilage whereon the same is erected.” The claim filed is to contain “a description of the building, and of the lot and curtilage upon which the lien is claimed, and of its sitúa*71tion, sufficient to inclentify tlie same.” Tlie claim filed in this case describes the building and lot as the Phoenix mill, together with tlie lot and curtilage whereon the same stands, which is designated as “ all that tract of land known as the Phoenix mill property,” and is described by metes and bounds. The precise number of acres contained in the tract is not stated. It appears, by the evidence, that besides the mill, there are two dwellings upon the tract; that there are seven or eight acres of enclosed land, upon which one of the houses stands. Both houses are usually occupied by persons employed about the mill. The residue of tlie land is unenclosed, and is described by the witness as chiefly open, broken, back land. For thirty yoars it has been known as one tract, and within that timo has not been sold with a greater or less tract of land than that described in the lien claim. Whether the tract contains twenty or two hundred acres does not appear, nor is it materia] to the present inquiry.
In order to sustain tlie lien to the extent of the claim, it is necessary for the plaintiffs to establish the principle, that the lien upon the building covers the entire tract upon which it is erected, and which has been usually conveyed and occupied with it. For this position the plaintiffs contend, and cite, in its support, the decision of the Chancellor in the case of the Executors of Van Duyne v. Vannest, 1 Halst. Ch. R. 485. The lion in that case was filed under the provisions of tlie act of March 3d, 1835, Pamph. L. 148, which are identical with those of tlie act of 1846 (Rev. St. 742). That act declares the debt to be a lien upon the building, and requires the claim 'filed to designate the building, without reference to the land. But it directs that the execution shall issue against the building, “ and land upon which the same is erected.” The Chancellor held that, upon the construction of that act, the land upon which tlie building was erected must be construed to moan the tract on which the building stands. This con*72struction is founded, entirely upon the language of the second section of the act in regard to the execution. The first section,'giving the lien, is a substantial copy of the Pennsylvania act of 1806, under which it has been uniformly held that the lien does not cover the house alone, nor the whole tract, but only so much as is necessary to the convenient enjoyment of the building. Sergeants Lien Law (2d ed.) 317, 135. This is' believed to have been the construction given in practice to our act of 1835. But with the view of relieving all questions upon this point, the existing law declares that the debt shall be a lien “ on the building, and on the land whereon it stands, including the lot and curtilage whereon the same is .erected.” And it requires that the claim shall contain a description of the building and of the lot or curtilage upon which the lien is claimed. The term lot serves ordinarily to designate with sufficient certainty the extent of a lien upon a town lot, but will not designate with suificient precision the extent of ground designed to be included in a lien upon a farm-house. The legislature have therefore superadded the term “ curtilage,” which is a familiar phrase in the law, and has a well defined legal meaning, both in the administration of civil and criminal law. It is defined to be the court-yard or piece of ground within the common enclosure belonging to a dwelling house. It is annexed to, and enjoyed with the house for its more convenient occupation. It is parcel of the house, and passes by the grant of the house. 14 Viner’s Ab., House “ E;” 1 Sheppard’s Touchst. 94; Jacobs’ Law Dic., “Curtilage ;” Bouvier’s Law. Dic., “ Curtilage.”
' So the crime of burglary, at common law, can only be committed in a mansion or dwelling house. But if the offence be committed in a stable, warehouse, or other outhouse within the curtilage, the crime is burglary ; for the mansion house protects and privileges all its branches and appurtenances, if within the curtilage or homestall. 1 Hale P. C. 558; 4 Bla. Com. 225 ; Rex v. Clayburn, 1 *73Russ. & Ryan 360. And although the legislature, in the supplement of 1855, have applied the term to mills and manufactories, to which it is not strictly appropriate, still the use of the term sufficiently indicates the intent of the legislature and the purpose of the act. The primary purpose of the act is to give to the mechanic and material man a lien for his debt upon the building the product of his labor and materials. But because some land is necessary to the enjoyment of the building, without which it would he of little value, the act also gives a lien upon so much land as is essential to the convenient enjoyment of the building. To extend this curtilage or lot to the entire tract upon which the building may be erected, whether it consists of twenty or two thousand acres; to extend it over an entire farm, or over other mills or dwellings, or over an entire manufacturing village, if within the limits of the original mill tract, would contravene the plain import of the act, and defeat its obvious design and policy. Upon such construction the lien upon a large manufactory might defeat the liens of those whose labor and materials contributed to the erection of all other buildings within the limits of the tract, The lien holder would have a lien, not only upon his own material and the products of his own industry, but upon the material and industry of others equally meritorious with himself. The lot of curtilage claimed by the lien holder should he limited to so much land as is necessary to the convenient and beneficial enjoyment of the mill.
But because ihe land described in the claim and in the declaration is larger than is authorized by law, the lien, so far as it lawfully extends, is not therefore rendered invalid. There is nothing in the act which justifies such conclusion. How the proper limits of the curtilage or lot covered by the lien are to be ascertained, is a question of some difficulty. It is obvious that this court has in the present case no means of deciding it. It will vary with the location and character of the mill, with the nature *74and extent of the business pursued in it, and with other considerations which the court have no means of ascertaining. It may be that further legislation will be necessary in order to effect that object. After an experience of thirty years with a lien law very similar to our own, the legislature of Pennsylvania found it necessary to make special provision by law for ascertaining the quantity and boundaries of- the land covered by the lien act of 16th June, 1836, Pamph. L. 675 ; Sergeant's Mech. Lien Law 330. The remarks upon the bill, to be found in Sergeant 330, note 1, indicate clearly the serious, if not insuperable difficulties which must attend the execution of our law without further legislation. Without attempting to suggest how the limits of the lot are to be ascertained, it is clear that it must be done before the plaintiffs are entitled to judgment or an execution to enforce their claim.
The only remaining inquiry is, were the defendants, Seymour and Sage, improperly joined in the action ? At the time the work was done and the materials furnished the title to the land was in Demckson, who contracted the debt, and who, in the language of the statute, was owner and buildex*. After the work was completed, he conveyed to Seymour and Sage, who were owners in fee at the tixne the lien was filed axxd at the time the action was commenced. They were undoxxbtedly proper parties to the actioxx, if they were xughtly described as. ownei's in the claim filed in the clerk’s office. The act requires that the claixn filed shall contain, among other things, the name of the owner or owners of the land, or of the estate therein, on which the lien is claimed. Nix. Dig. 487, § 6. Who is intended by the statute, the owner at the time the building is erected, or the owner at the time the lien is filed? There is nothing in the language of the section itself to indicate clearly which is intended. Staxiding alone, the natural ixnport of the language would seem to indicate the owner at the time the lieix is filed. The question is one of gx’eat px-actical impox’tance, upon which *75there is not only a diversity of sentiment among the profession bnt a diversity of practice. Cases are now pending in the courts of this state in which contrary courses have been adopted, and both are excepted to as illegal. The true construction of the act may be most satisfactorily ascertained by adverting to the design of the legislature in making the requirement. It is obvious, from the seventh section of the act, that one great design of the requirements of the sixth section was to give notice to third parties of the existence of the lien, its amount, the lands encumbered, and the person whose estate was encumbered. If, then, the lien attached at the time of filing the claim, and upon the estate of the then owner, it would be obvious that he was the person indicated as owner. But filing the claim does not create the lien any more than registering a mortgage creates the encumbrance. The statute (§ 1) declares that the debt contracted for labor performed or materials furnished for the construction of the building shall constitute the lien. The lien attaches and becomes a valid subsisting encumbrance at the lime of the commencement of the building, and upon the estate of the then owner. To insert, then, in the claim filed the name of a person as owner who was not the owner at the time of the creation of the encumbrance, and not the person upon whose estate the encumbrance originally attaches, would be to defeat the very object of filing the claim, and to mislead third persons as to the origin and nature of the encumbrance, That this is the true nature of the encumbrance is apparent from the subsequent provisions of the statute. It requires that the suit to enforce the claim shall be against the builder and the owner of the land and building; that if the judgment be against the building and lands, a special writ of fieri facias shall issue, under which the building and lands shall be advertised and sold ; and the deed given by the sheriff or other officer shall convey to the purchaser said building, free from any former eu*76cumbrance on the lands, and shall convey the estate in said lands, which- said owner had at or any time after the commencement of the building, within one year before the tiling such claim in the clerk’s office, subject to all prior encumbrances, and free from all encumbrance or estates created by or obtained against such owner afterwards, and from all estates and encumbrances created by deed of mortgage made by such owner, or any claiming under him, and not recorded or registered in the clerk’s office of the county at the commencement of said building. Nix. Dig. 489, § 11. The section is treating of the title conveyed imder the execution issued upon a judgment recovered against the owner and builder. It declares it shall convey the estate in the lands which said owner had at or any time after the commencement of the building, subject to prior encumbrances and free from all subsequent estates and encumbrances and from all estates and encumbrance by deed or mortgage made ~by such owner, or any claiming under him, and not recovered or registei’ed at the commencement of said building. This language renders it very clear not only that the lien attaches at the commencement of the building upon the estate of the then owner, but also that the said owner against whom the suit is commenced, and who is to be specified in the claim filed, is the owner at the time the building is erected. In contemplation of law Derrickson, in this case, was both builder and owner. The lien attached upon his estate at the time of the commencement of the building and prior to the estate conveyed by Derrickson to Seymour . and Sage. It not only takes priority of that conveyance, but of all prior estates or encumbrances created by Derrick-son after the commencement of the building. And yet a deed executed under a -fieri facias issued upon a judgment rendered in this cause against Seymour and Sage, as the owners, would vest in the purchaser not the title of Derrickson, but the title of Seymour and Sage, and subject to all encumbrances which may have been created by *77Derrickson at any time while he retained the title. Such construction will conflict with the exjness provisions of the statute, and deprive the lion holder of the protection which the act was designed to give him.
And how, it may be asked, is the claimant to ascertain who is the legal owner at the time of filing the claim. It may be presumed that the owner of the land upon which a building is being erected may be publicly known or readily ascertained. But how is the claimant to be apprized of any transfer of title ? The ownership does .not depend upon the fact of the deed being recorded. And may the security of the lien be entirely defeated by a transfer of title before the claim is filed ? Experience has already shown that this difficulty is not an imaginary one, and if the claim must state the name of the true owner at the time it is filed, a transfer of the property unrecorded will effectually defeat the validity of the lien. It is urged that the phrases “ any land owner” and “ said land owner,” in the fifteenth section, clearly apply to the existing owner. This may be admitted without at all affecting the construction of the language of the sixth section. It merely proves that the same phrase is used in different senses in different parts of the act. But in this connection it is worthy of special notice that the phrases “ any land owner,” in the 13th section, and “the owner of the land or buildings,” in the 12th section, seem to have been designedly used in contradistinction from the term “ said land owner,” in the 12th section.
It is further urged that the design of making the land owner a party to the suit, is that he may have an opportunity of defending his title. And why make one a party wdio has disposed of his interest ? The argument is certainly entitled to consideration. It may, perhaps, be answered, that the creation of the lien by the erection of a building is so open and notorious an encumbrance that the purchaser must be presumed to have had notice of the encumbrance, and to have taken title with covenants of *78•warranty, in which case the original owner would be the real party in interest. But giving to the suggestion all the weight to which it is entitled it proves too much.
The same difficulty would exist if the owner named in the lien filed should subsequently convey the land before the commencement of the suit. There is in fact no mode provided by the act in which all the parties interested can be brought before the court, as in a case in equity. The owner of the legal estate is alone to be made a party, and the only question is, whether, in contemplation of the statute, it is the owner upon whose estate the lien attaches or the owner to whom the legal title is subsequently trans-f erred.
The mere fact that Seymour and Sage are improperly joined in the action will not in itself defeat the validity of the hen or the plaintiffs’ right of recovery. No recovery is sought against them. They are made parties simply for the purpose of defending the title. The proceeding is for the purpose of enforcing the lien. The judgment is against the land, not against the person of the owner. The real owner is before the court. Derrickson, in contemplation of the statute, is orvner and builder. It is true, the proceeding in the action is not technically in strict accordance with the forms prescribed by the statute. Derrickson is not described as owner. But for the purpose of effecting the design of the statute, the form may be disregarded when the substance is preserved and no right impaired. If the whole difficulty consisted in the mere form of the proceeding to enforce the lien, the lien itself .being valid, and the proper party before the court, I should have no difficulty in sustaining the proceeding.
But the more important question is, is the lien itself valid ? Did it properly describe Seymour and Sage as owners, and if not, is the lien nevertheless valid? As has been said, the principal design of filing the claim was to give notice to third parties of the. existence of the encumbrance. The act, requires that the claim shall contain *79a description of the building and land, the name of the owner, the name of the builder, and the amount of the lion. All these particulars are to be recorded in the lien docket as information to third parties. It is further enacted, that when such claim shall not be filed in the manner or within the time prescribed by the act, the building or lands shall be free from all lien for the matters in such claim. If the construction above given to the act be the true one, this lien is not filed in the manner prescribed by the act. It does not contain the name of the owner, and consequently, by the terms of the act, the building and lands are free from the lien.
I have come to this conclusion with reluctance, inasmuch as the plaintiffs’ claim is defeated not from any laches on his part, but from a mistaken construction of a provision in the statute, which is of doubtful import and admits of different interpretations.
Affirmed 5 Dutch. 468; Cited in Coddington v. Hudson Co. Dry Dock Co., 2 Vr. 488; Robins v. Bunn, 5 Vr. 323 ; Gordon v. Torrey, 2 McCar. 114; Tompkins v. Horton, 10 C. E. Gr. 288 ; James R. Dey, in re, 9 Blatch. 292; Browne & Ten Eyck, in re, 12 B. R. 530.